 Joseph Zamora (Photo: Erika Schultz/The Seattle Times)
Brandi Moncada had let her dog out as Zamora passed by her house. She would later say she noticed a man in the snow because her dog barked. Moncada yelled at the man to leave or she would call the police. He looked in her direction but continued walking. Moncada then called 911 and reported a suspicious individual in the neighborhood, possibly looking to break into cars.
Officer Kevin Hake with the Moses Lake Police Department responded quickly to the 911 call, arriving at about 9:30 p.m., and saw Zamora in the yard of Javier Torres’s home, where Zamora’s niece lived. Hake, who was 41 years old, would later testify that Zamora appeared to be carrying a suitcase. (It turned out to be a large video-game console.) Hake was not wearing his body camera and later said the camera mounted on his vehicle was broken. Also according to Hake’s testimony, he shined his flashlight on Zamora and yelled “Hey, need to talk to you, come on over.”
Hake would testify that Zamora walked toward him but stopped six or seven feet away. Hake said that Zamora’s left hand was in his pocket, with the thumb hooked on the outside. Hake said he questioned Zamora about what he was doing and where he was going. He asked Zamora for identification. Hake would later say that Zamora was unresponsive, and Hake radioed for backup, saying, “I’ve got one resisting.”
According to Hake, Zamora turned to walk away, and he stuck his arm out and told Zamora that he couldn’t leave, because someone had “called him in about looking through vehicles.” Hake said Zamora then turned away again. As he did so, a boot Zamora was carrying along with the gaming console fell to the ground.
Hake would later testify that Zamora then placed his left hand more firmly in his pocket, which made Hake believe Zamora had a gun there. Hake said he put Zamora in an elbow lock, repeatedly punched him, pepper sprayed him, and finally drew his weapon.
Officer Timothy Welsh, who was 31 years old and the first officer to respond to Hake’s request for assistance, would later testify that he could hear Hake over the police radio yell at Zamora: “Put your hands behind your back, I’ll fucking kill you.”
In addition, Welsh would testify that when he arrived at the scene, Hake was straddling Zamora, who was face down, kicking and squirming. Welsh said he tried to help Hake subdue Zamora by punching him in the back of the head and pepper spraying him.
Six other officers would eventually respond to the call for assistance, eventually handcuffing and then hog-tying Zamora. Welsh said that Zamora kicked him in the chest while the other officers hog-tied him.
The police called for an ambulance. Garret Fletcher, a firefighter and paramedic, arrived and found Zamora facedown and hog-tied with officers still on top of him. Fletcher would testify that when he began treating Zamora, he was unconscious, not breathing, and without a heartbeat. Fletcher began cardio-pulmonary resuscitation and used a defibrillator to restart Zamora’s heart. Zamora was taken to Samaritan Hospital in Moses Lake, and then transferred by helicopter to a larger hospital in Spokane. He remained in a coma for several weeks and in the hospital for several months.
The officers did not file a police report. The Moses Lake Police Department opened an internal investigation into whether the officers used excessive force. As part of the investigation, the officers gave statements about the incident, which were the only police accounts of the event. These records are known as Garrity statements, named for a United States Supreme Court decision involving a New Jersey police officer named Garrity. The ruling says that when officers are required to give formal statements as part of an internal investigation, these statements cannot be used to prosecute the officers on any related criminal charges.
The police department asked Sergeant Matt Anderson with the Washington State Highway Patrol to investigate the incident and determine whether to charge Zamora with a crime. Anderson interviewed Zamora but none of the witnesses nor any of the officers. His report relied heavily on a summary of the officers’ Garrity statements.
On May 3, 2018, based on Anderson’s report and nearly a year after Zamora’s release from the hospital, Zamora was charged with two counts of third-degree assault. Officers Hake and Welsh said they had sustained injuries to their hands during the incident. Hake said that he had “a couple of small scratches around his hand and wrists,” while Welsh claimed he had bruising on his knuckles from repeatedly punching Zamora in the back of the head.
Zamora’s trial in Grant County Superior Court began on May 1, 2019, presided over by Judge John Antosz. Tyson Lang represented Zamora, and Chief Prosecuting Attorney Garth Dano and Deputy Prosecuting Attorney Chad Jenks represented the state.
During jury selection, Dano questioned potential jurors about their views on border security and whether they were in favor of building a wall between the United States and Mexico. When one potential juror said that they believed immigration was an “opportunity for great people to come to our country,” that a border wall was “ridiculous,” and “native-born Americans also commit crimes,” Dano responded by asking the juror. “If you don’t believe a wall would help, do you lock your door?” Dano also asked jurors if they had “heard about the recent drug bust down in Nogales, Arizona where they picked up enough [of] what’s called Fentanyl that would have killed 65 million Americans.”
After jury selection, Judge Antosz asked Lang why he didn’t object to Dano’s line of questioning. (Zamora was born in Pasco, Washington.) Lang said he didn’t believe Dano’s approach was helpful to the prosecution. In his opening statement, Lang said: “One of the things that I wanted to address right off the bat was yesterday in voir dire you were asked some questions, specifically about a border wall, cross border crime, immigrants coming in and committing crime, and I had a concern that that might put in your minds that there's an issue of immigration in this case. There is not. I don’t want you to waste any more time thinking about that or wondering when you’re going to hear evidence of that. My client is a U.S. citizen and so that is not at issue in this trial.”
The state also moved to prevent the defense from asking the police witnesses about their Garrity statements. Lang argued that the statements underscored the unusual nature of this case. “Your Honor, I think it goes to their state of mind that immediately after this event, none of the officers involved were willing to make a statement that might be used to prosecute them for wrongdoing,” he said. “They made a Garrity statement, which the essence of the Garrity statement is ‘I’m required to make this statement, so I don’t get fired, I have to tell the superior officer what happened, but I’m making it under case law that says that I cannot be prosecuted as a result of this.’ It was done by every officer.”
Jenks said that telling the jury that there was no conventional police report in this case implied a “consciousness of guilt” on behalf of the officers. “It wasn’t each of these officers saying, ‘I think I’m criminally liable, so I’m not going to do a report,’” Jenks said. “They were told by their superior not to do reports, that they were going to do Garrity interviews instead.” Jenks also said the officers couldn’t remember which supervisor told the officers to provide these statements.
Judge Antosz granted the state’s motion, barring Lang from mentioning the Garrity statements or asking the officers about these statements.
By the time of the trial, Hake had resigned from the Moses Lake Police Department. Judge Antosz also barred Lang from asking Hake when he resigned and why he had resigned. In addition, Hake had received a continuance for dismissal on assault and disorderly conduct charges related to a bar fight. (A continuance for dismissal allows a charge to be dismissed at a later date if a defendant abides by the court’s conditions.) Lang said he did not believe he could use the bar fight evidence against Hake because Zamora did not know about the issue at the time of the incident, so it wasn’t relevant to his self-defense claim.
Moncada testified that because of the limited lighting on her street she could not make out what Zamora looked like or what he was doing, only that he was moving slowly. She also said that after she called 911, the operator told her to stay inside. She said she did not see the altercation between Zamora and the officers.
Hake said that during the initial struggle, Zamora tried to choke him with the microphone cord attached to Hake’s portable radio. Hake said that Zamora was exhibiting “passive resistance,” not cooperating or complying with his orders. Hake also said that during their fight, Zamora reached for his utility belt and gun holster, and he removed Zamora’s hands from the holster three times. Hake said that Zamora became stronger and more enraged after Hake pepper sprayed him. Hake said he hit Zamora so many times because he was in a “fight to the death” and all alone until backup arrived. “Well, as we kind of talked about a little bit … there wasn’t a whole lot of blows being delivered when once you got the manpower there, you had — I struck him dozens and dozens and dozens of times. That wouldn’t have been necessary, I don’t believe, if we showed up with six people, he would have been able to be detained and taken into custody. There would have been a struggle, there still would, but without the level of violence that it took.”
Welsh testified that Hake sounded distraught on his request for backup. He could hear Hake telling Zamora to “put [his] hands behind [his] back” and threatening to kill Zamora. Welsh said that when he arrived at the scene, “[Zamora] was face down, but he was kicking and trying — he was obviously trying to spin around on Officer Hake. That’s why I ran to the left side, so we could get on both sides of him to hold him down.”
Anderson testified about his investigation. He said he interviewed Zamora, who told him that he had smoked methamphetamine two or three days before the incident but couldn’t recall if he smoked it on February 5. Anderson also testified that Zamora claimed ownership of a switchblade found in his jacket during a search after his arrest.
On cross-examination, Anderson said he did not talk to any of the citizen witnesses. Because of the judge’s rulings, Lang was unable to directly question Anderson about the sources of his report. He did testify that his investigation did not turn up any signs of car break-ins in the neighborhood.
Zamora did not testify. Torres testified as a defense witness that he watched the confrontation between Hake and Zamora. He said that Hake initiated the violence and that Zamora was not resisting. Torres said that he saw the … officers kick, punch, and elbow Zamora as he laid face down in the snow. While Zamora was on the ground, Torres heard him say, “I can’t breathe” and “[y]ou’re choking me.” Then he saw one officer use a chokehold after Zamora had been hog-tied.
Dr. Joshua Frank, an emergency-room physician at the Moses Lake hospital, testified that he treated Zamora and that Zamora tested positive for methamphetamines and THC. Frank also testified that these tests may show positive for several days after a drug is taken.
In his closing argument, Dano said Hake used necessary but not excessive force in arresting Zamora. “Frankly, it’s amazing that Officer Hake was able to hold off — hold on for so long during that struggle while he was all by himself.”
Dano also discounted Torres’s testimony about Hake being the aggressor. “This is a guy who doesn't like the police,” he said. “He — you know, when Officer Hake is out there struggling with the guy, he just stays inside, closes his door, doesn’t offer any help. Then obviously, you know, for someone to come into court and say that on the stand, ‘I don’t want nothing to do with [the] police, I got nothing to say to them,’ he doesn’t like law enforcement.”
On May 9, 2019, the jury convicted Zamora of two counts of assault against an officer. He received a sentence of 38 months in prison and was fined $500.
Zamora appealed, arguing that Judge Antosz erred in barring the use of the Garrity statements. The appeal also said that Lang had provided ineffective representation by agreeing to the state’s motion to exclude evidence of Hake’s unrelated misconduct. In addition, the appeal said that Dano committed misconduct during jury selection when he questioned jurors about their views on illegal immigration.
On June 8, 2021, the Washington Court of Appeals affirmed Zamora’s conviction, but remanded the case for resentencing. It said that although Dano’s comments and questions during jury selection were improper, a new trial wasn’t required. The ruling noted that Lang didn’t object to Dano’s actions and later addressed the issue of immigration during his opening statement. “Mr. Zamora is unable to demonstrate that the prosecutor’s conduct caused an enduring and resulting prejudice that could not have been neutralized,” the court said. The ruling also said that Lang had been effective in his representation.
Based on the court’s sentencing ruling, Zamora’s sentence was reduced to 11 months. By then, Zamora had already served 22 months and was released from prison on June 15, 2021.
Zamora petitioned the Washington Supreme Court, asking for leave to appeal. While the petition was pending, Kevin McCrae, a deputy prosecuting attorney, emailed Dano and said that the prosecution should “dump” the case because Zamora had “already served his time.”
On November 3, 2021, the Washington Supreme Court granted Zamora’s petition for review.
On December 1, 2021, the state filed a motion to halt the appeal and said it would dismiss Zamora’s case with prejudice in the “interest of justice.” (A dismissal with prejudice means the case cannot be reopened.) The state’s response said that Zamora was already out of prison and that the Grant County Prosecuting Attorney’s Office was short-handed. “At this time, the prosecutor’s office does not have the resources to continue with this case and still address more pressing cases,” the response said.
A superior court judge approved the motion to dismiss, subject to the Washington Supreme Court’s approval. Zamora’s attorneys objected, in part because they wanted the state to concede error. The Washington Supreme Court rejected the lower court’s order of dismissal. Dano resigned as chief prosecuting attorney at the end of 2021 and was replaced by McCrae.
On June 30, 2022, the Washington Supreme Court vacated Zamora’s convictions. “We conclude that the prosecutor’s questions and remarks apparently intentionally appealed to the jurors’ potential racial or ethnic bias, prejudice, or stereotypes and therefore constitute race-based prosecutorial misconduct.”
The court said that Dano’s questions were improper and framed to appeal to the ethnic and racial biases of potential jurors. They violated Zamora’s right to an impartial trial, the court said. It did not rule on the other issues raised in Zamora’s appeal.
In a concurring opinion, Chief Justice Steven Gonzalez, said, “The case before us is one where the jury was asked to decide, among other things, whether Joseph Zamora, a United States citizen, assaulted a police officer’s knuckles with the back of his head.”
He added: “I write separately to emphasize that bias, intentional and unintentional, persists among some residents of Washington against people they perceive as immigrants from countries south of the United States. Such bias also exists in the former elected prosecutor who handled this case and whose voir dire questions infected the proceedings.” He said it was disingenuous for McCrae to “stand before this court and defend the prosecutor’s conduct in this case, which was a clear attempt to direct such negative attitudes toward Mr. Zamora.”
On October 27, 2022, Dano received a reprimand from the Washington State Bar Association. In a letter to the bar written a month earlier, Dano apologized for his actions. He wrote: “Coming to grips with the reality that I let my profession down, failed the citizens of Grant County, did harm to my reputation, and most critically, impacted Mr. Zamora’s fundamental right to a fair trial has been an exceedingly painful process. It was a mistake in judgment that I deeply regret and am committed to learning from and never repeating.”
On August 18, 2023, McCrae moved to retry Zamora. In a filing, he said that Zamora had not accepted responsibility for his role in the incident. Zamora’s attorneys moved to dismiss.
On October 17, 2023, following a hearing, Grant County Superior Court Judge Tyson Hill granted the motion to dismiss.
“When considered in their entirety, these facts present a likelihood that the State’s decision to retry Zamora was a response to Zamora’s unwillingness to forgo his appeal and the State’s frustrations with the fallout from the Supreme Court’s decision,” Judge Hill wrote. “To find otherwise would require the court to ignore the obvious inferences this factual timeline portrays. In reaching this determination, the court does not find the State has acted with actual vindictiveness. The court does find, however, that Zamora has met his burden of showing presumptive vindictiveness.”
Zamora stated after his exoneration, “I’m so glad that this is over so I can focus on healing and spending time with my family”
– This case was researched and written by students in Social Ecology 106W, Spring 2024, at the University of California, Irvine.
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