The Grant County prosecuting attorney intentionally appealed to jurors’ racial and ethnic biases when, during the trial of a Latino man, he asked them questions about illegal immigration, a border wall and crimes committed by undocumented immigrants, the Washington state Supreme Court ruled Thursday.
“The prosecutor in this case committed race-based misconduct,” Associate Chief Justice Charles Johnson wrote for the unanimous court in the case, State v. Zamora. “The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable.”
The court, in recent years, has made efforts large and small, symbolic and concrete, toward addressing the nation’s history of systemic racism. The latest ruling is a continuation of that push.
In it, the court applied its own test for identifying race-based misconduct, which it has previously used in cases of jury selection, juror misconduct and police stops and seizures. In this latest case, the court applied the test to determine if there was prosecutorial misconduct.
The standard: Could an “objective observer,” one who is aware of the “history of explicit race discrimination in America” and how that affects current events, view the prosecutor’s questions as appealing to racial prejudice.
“This is really harmonizing the court’s approach in addressing the really tricky question of how to address race and race bias in the criminal legal system,” said Robert Chang, a law professor and director of the Korematsu Center for Law and Equality at Seattle University.
The case began on Super Bowl Sunday in 2017 when Joseph Zamora was walking to his niece’s house in Moses Lake. A neighbor called police to report a possible vehicle prowler. There was no prowler.
The responding officer met Zamora in the driveway of his niece’s house. The officer said Zamora’s demeanor made him nervous and that Zamora had eyes “the size of silver dollars.”
The officer grabbed Zamora, tried to restrain him and a struggle ensued.
Eight officers became involved in subduing Zamora. When paramedics arrived, Zamora was handcuffed, hogtied and lying facedown in the snow with two officers on top of him. He had no heartbeat or pulse. It took paramedics seven minutes to revive him and he was in intensive care for four weeks.
Subsequent blood tests found Zamora had amphetamine, methamphetamine and marijuana in his system.
He was charged with two counts of assaulting a police officer, including one because an officer “sustained an injury to his hand from punching Zamora in the back of the head multiple times.”
The court wrote that Zamora was “guilty of nothing more than walking while high on drugs” and that the police’s actions were “alarming.”
Zamora was originally sentenced to a little more than three years in prison. He served much of that time, before an appeals court last year upheld his conviction but found fault in how his sentence was calculated and ordered him to be resentenced.
The case reached the Supreme Court not because of the police’s conduct, but because of the actions of the county prosecutor. The case was tried by Grant County Prosecuting Attorney Garth Dano, who was first elected in 2014 and stepped down last year.
Zamora is a U.S. citizen, but Dano began his questions during jury selection asking about illegal immigration and border security.
“First of all,” Dano began in addressing the potential jury. “Some people say today in our society we have — we don’t have enough border security.”
When one juror said that immigrants are not the sole contributors to violent crime, Dano pushed back. He asked if they could “make room for” someone who had a loved one killed by somebody who was “wrongly in the country.”
He asked about “100,000 people” crossing the border illegally, per month. When one juror was skeptical of a border wall, Dano asked, “If you don’t believe a wall would help, do you lock your door?”
Dano’s remarks, the court found, “implicated” Zamora’s ethnicity and appealed to jurors’ potential biases.
“This case was not remotely related to immigration — lawful or unlawful. This case had nothing to do with borders or border security. Any mention of border security, immigration, undocumented immigrants, and drug smuggling was wholly irrelevant,” Johnson wrote. “Courts must be vigilant of conduct that appears to appeal to racial or ethnic bias even when not expressly referencing race or ethnicity.”
The court ruled that Dano’s misconduct resulted in “incurable prejudice” and overturned Zamora’s conviction.
Dano resigned as Grant County prosecutor last year, citing personal reasons but also complaining about the state’s response to the COVID-19 pandemic.
“It’s always easy to sit back and Monday morning quarterback a case,” he said Thursday. He said he asked questions about border security and immigration because they were topics in the news and he was trying to get jurors to talk and open up.
“It’s kind of a subtle way of trying to find out if they’re pro-wall or not pro-wall,” Dano said. “It probably tells you whether they’re more prone to be prosecutorial-minded or defense-minded. You can’t ask them, ‘You going to vote for the prosecutor or you going to vote for the defense?’ “
Zamora, he said, has a Hispanic name but “appears Caucasian” and “it wasn’t to try to garner prejudice against him at all.”
Current Grant County Prosecuting Attorney Kevin McCrae said the misconduct found by the court “is not the policy of our prosecutor’s office.” He said he hasn’t decided on if he will seek to retry Zamora and declined to comment further.
Chief Justice Steven González, in a concurring opinion, wrote that Zamora was accused in part of assaulting “a police officer’s knuckles with the back of his head.”
“Bias, intentional and unintentional, persists among some residents of Washington against people they perceive as immigrants from countries south of the United States,” wrote González, joined by Justice Raquel Montoya-Lewis. “It would be naive to think we are immune from this bias or that such attitudes never color court proceedings.”