EPHRATA, Grant County — The almost-seven-year legal saga that began when police beat Joseph Zamora nearly to death on a snowy night in 2017, ended Tuesday when a judge ruled that the Grant County prosecutor likely acted vindictively in bringing charges, for the second time, against Zamora.
Continuing with the case against Zamora would be "damaging to the justice system," Grant County Superior Court Judge Tyson Hill ruled.
The saga has seen Zamora convicted, imprisoned, freed and charged again for the same offense.
It has seen prosecutors charge Zamora for, in the words of Washington's chief justice, having "assaulted a police officer's knuckles with the back of his head," then ask for those charges to be dismissed, then file those same charges again. It's seen one elected prosecutor formally reprimanded and his successor informally chastised for their conduct in the case.
It has seen Zamora's body permanently scarred from the events of that night and the four weeks he spent in a coma afterward, and it has seen his psyche scarred by the beating and its long, long aftermath in the criminal legal system.
"The court finds Zamora has presented sufficient facts showing a realistic likelihood of vindictiveness," Hill wrote in a 14-page decision. "The perception of this case, should it go forward, would be more damaging to the justice system than the potential benefit of returning two convictions to Zamora's record."
In dismissing the assault charges with prejudice, meaning the case can never be brought again, Hill found that Grant County Prosecutor Kevin McCrae's actions were likely an effort to penalize Zamora for using his legally protected right to appeal his conviction.
"This case tested my faith in the justice system," Zamora said in a statement through his lawyers, describing how he spent weeks in the ICU, nearly two years in prison and "sleepless nights" after being charged again. "I'm so glad that this is over so I can focus on healing and spending time with my family."
Mark Middaugh — one of five Seattle criminal-defense and civil-rights lawyers who joined the case pro bono, replacing a public defender, after previous Seattle Times coverage of the case — said the team was "thrilled for Joe that his nightmare is finally over."
"In spite of everything he went through, Joe had the courage to press his appeal to our state's highest court," Middaugh said. "As a result, Washington has a new, tougher standard to keep our courts free of prosecutorial race-based misconduct. Our justice system will be better off because of Joe's resolve."
McCrae, in an email, said he was "extremely disappointed in the Court's unprecedented decision."
"It is unfortunate that the actual facts of this case will not be placed in front of a jury," he added.
Zamora was walking to his niece's home on Super Bowl Sunday in 2017, when, after a neighbor mistakenly believed he was prowling through cars, Moses Lake police beat, pepper-sprayed, Tased, kicked and hogtied him so severely that his heart stopped and he spent six weeks in the hospital.
The officer who led the beating had previously been chastised for using excessive force when de-escalation tactics were available. He'd also had several run-ins with the law himself and just a few months later resigned after he was charged with assault and disorderly conduct in a bar fight.
Zamora was charged and convicted of two counts of assaulting an officer and served 22 months in prison. He appealed his conviction to the state Supreme Court, arguing that Garth Dano, Grant County's elected prosecutor at the time, committed race-based misconduct at the trial.
Dano, during jury selection for the trial, had asked potential jurors questions about illegal immigration, a border wall, and crimes committed by undocumented immigrants. Zamora, a U.S. citizen, was born in Pasco.
But after the Supreme Court agreed to hear the appeal, with Zamora already out of prison, McCrae, who took over as prosecutor after Dano stepped down, asked to have the case dismissed, seeking to short-circuit the appeal. McCrae said his office was too short-staffed to argue the appeal and that "it is no longer in the interests of justice for the State to pursue this case."
The Supreme Court heard the case and ruled unanimously Dano had committed race-based misconduct. The justices threw out Zamora's convictions. In their decision, they created a new legal standard in Washington: A prosecutor has committed misconduct if an objective observer, aware of America's history of race discrimination, could view their behavior as appealing to racial prejudice.
"The apparent purpose of [Dano's] remarks was to highlight the defendant's perceived ethnicity and invoke stereotypes," Justice Charles Johnson wrote for the court. "The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable."
Dano was later reprimanded by the Washington State Bar Association for discriminating on the basis of race or national origin, and ordered to pay a fine and attend legal education classes. McCrae was chastised in a concurring opinion from Chief Justice Steven González for "disingenuous" conduct in defending Dano.
McCrae then made an abrupt about-face: He charged Zamora with the same offenses all over again. Zamora had served more than a full prison term and couldn't serve any more time even if convicted.
McCrae, in recent court filings, has been critical of the Supreme Court's decision chastising Dano.
The decision, McCrae wrote, "makes race the center of what is allowable in the justice system in violation of the due process and equal protection clauses."
Zamora's legal team asked this summer for the case to be dismissed.
The prosecution, they argued, was inconsistent, plagued with misconduct and mismanagement, and was vindictive.
McCrae, they wrote, reversed his clear stance that the case should be dismissed only after Zamora exercised his right to appeal and "held the State accountable for the Prosecutor's race-based misconduct."
"The prosecutor decided to retry Mr. Zamora in direct response to his exercise of his constitutional right to appeal, and that is vindictiveness," Cooper Offenbecher, one of Zamora's lawyers, said in a September hearing. "There has never been a case like this, as far as I can tell in Washington, where there is such a clear, 180-degree turnaround."
In the September hearing, Zamora's legal team — he was accompanied by four lawyers and three law students — repeatedly stressed the seeming implausibility of the prosecutor's position.
"First the prosecutor said that the case should be dismissed with prejudice, done forever, because reprosecuting Mr. Zamora no longer served the interest of justice," Offenbecher said. "Now the prosecutor says the case should not be dismissed and it is really important that he go through another trial even though he has served all of his jail time."
"This flip-flopping is the antithesis of respect for judicial proceedings and this court should not condone it," he said. "It makes your head spin, it is unheard-of."
Hill, during September arguments, didn't tip his hand either way, asking probing questions of both sides. But he seemed perplexed by the prosecution's sequence of decisions.
"I have a declaration from you that says a dismissal with prejudice, which says it doesn't matter what happens, it doesn't matter if he gets new charges, it doesn't matter what changes, this case will never be re-filed by our office," Hill said. "Now the state comes back and says, 'Nevermind about that, things have changed.' Doesn't that have at least a look, there's something more going on here?"
"This situation," Hill wrote in his decision, "is far from ordinary."
McCrae argued that he was retrying Zamora because there was a "public interest" in getting to the bottom of what happened, without the "calls to bias" that tainted the first trial. He said he was no longer bound by his prior request to dismiss the case with prejudice, because the Supreme Court didn't accept the request. And he faulted Zamora for the confrontation with police and resisting arrest, writing that he "still refuses to accept responsibility for his actions."
"This is what we do: We take people to trial if they won't acknowledge this is wrong," McCrae said in court in September.
Zamora, 41, has a lengthy arrest record, both as an adult and as a juvenile, and McCrae attached to his response a list of police reports from the last decade. After the beating in 2017, Zamora tested positive in the hospital for amphetamine, methamphetamine and marijuana.
Zamora may have been bruised from the beating, McCrae wrote, but the "major harm" that left him in a coma for four weeks and in the hospital for six weeks "came from his methamphetamine intoxication, not the officer's actions."
"Mr. Zamora had this superhuman strength based on the drugs, there's no misconduct on the part of the MLPD," McCrae said.
But the most important reason he changed his mind, McCrae said, was the staffing in his office, which he said had improved to the point that he could try the case.
In November 2021, when he asked to have Zamora's case and appeal dismissed, his office had 12 attorneys, out of 16 allotted, and he was worried about several of them leaving, McCrae wrote.
Today, he says staffing is in "better shape," even though he still has only 12 attorneys, and that includes recent law school graduates awaiting the results of their bar exams.
Zamora's lawyers were incredulous. They found testimony from a former deputy prosecutor who worked on Zamora's case before leaving McCrae's office this summer.
Caseloads were "out of control" and the prosecutor's office was "just trying to tread water," the former prosecutor said in May.
They also cited an email from McCrae, written to Dano and others in 2021, the day after the Supreme Court said it would hear Zamora's appeal.
Nowhere in the email does McCrae mention staffing issues.
"Garth," McCrae wrote, "The consensus is we should dump this case. He has already served his time and nothing good can come out of the Supreme Court on this."
McCrae's argument that he is bringing charges now because of staffing improvements, Zamora's lawyers wrote, "defies common sense."
Hill, ultimately, paid the staffing arguments little heed. McCrae was certainly in the best position to evaluate his office's staffing, Hill wrote, but there was "no convincing objective evidence" that McCrae was actually basing his charging decisions on staffing issues.
