The good news: Domingo Anaya Bustos, a resident of Modesto, Calif., and Michoacan, Mexico, will finally be free. He has served over 21 years for a murder he did not commit.
With help from the lawyers at Northern California Innocence Project (NCIP) at Santa Clara University and the firm of Keker, Van Nest & Peters, Bustos can finally be with his 96-year-old grandmother, who visited him from Mexico every two years during his 21 years behind bars. And for the first time in almost 22 years, see his mother who has traveled twice from southern Mexico to visit him only to be inexplicably turned away at the prison doors.
The bad news: To do so, he had to plead no contest to manslaughter in a killing to which someone else has confessed. Bustos has always maintained his innocence and did so even during the plea. It’s a murder for which he likely would not even have been charged, if all the evidence had been available from the start.
But Bustos’s story shows that justice, like life, can be very messy. That’s true even when all the parties— the District Attorney’s office, NCIP and Keker, the guilty and the wrongly accused — seem to be seeking true justice. From the moment that evidence pointing to Bustos’s innocence emerged, the trial DA tried, more than once, to bring it to the court’s attention.
The current DDA, John Mayne, has also worked hard to make sure all pertinent exculpatory facts were fairly considered, and agreed to amend Bustos’s conviction in a way that facilitates his release in exchange for the plea.
That’s why Bustos pled no contest to a crime he didn’t commit. He considers it the price of his freedom. “Whatever days God has left for my grandmother, I want to spend them with her,” he said from prison as he awaits release.
In 1996, four men were in a car when the front passenger turned around and shot and killed the passenger in the seat directly behind him. The other back seat passenger, the victim’s brother-in-law, went to the police and identified the killer, whom he didn’t know, as a light-skinned, 40-something man weighing about 180 pounds. He also gave the name of the driver, Jose Luis Zepeda. The police, investigating the driver, homed in on his cousin with a drug possession on his record—Bustos— as their primary suspect for the shooter.
In a photo lineup, the brother-in-law did not identify Bustos—at first. But, then police showed him Bustos’s photo a second time. Recognizing that was the only person police had shown him twice, the brother-in-law identified Bustos.
However, Bustos was 25 (not 40-something). At the time he weighed 140 pounds (not 180). And he’s dark-skinned.
Nonetheless, they went to trial. Twice.
Two trials and a snitch
The first trial ended in a hung jury, with 8 jurors voting to acquit.
Bustos was retried. The second time, the prosecutor had a new witness: a serial jailhouse informant, who testified that Bustos confessed to him.
In his first taped statement, the snitch admitted that he had no details as to how the murder was committed. But one month later, a government official asked “Did Bustos tell you he shot the Mexican in the car?” and the snitch said “yes.” At trial, the snitch repeated those exact words, the jury did not hear his taped statement, and the prosecutor harped on those details as evidence that the snitch was reliable.
In addition, at the second trial, the defense’s newly acquired taped statement from the driver, who identified the killer as his longtime buddy Angel, was not admitted because it was considered “hearsay.” The driver couldn’t be called to testify in person because he already fled to Mexico.
Years later, the DA discovered the snitch’s taped statement, and realize that it was vital defense information that never emerged at trial. His sharing of it opened the door for Bustos’s first habeas petition. But Bustos, who speaks Spanish and has a grade school education, had no attorney to help at that time, and the courts denied his attempts to challenge his conviction on his own.
Then, in 2015, Angel agreed to talk to NCIP. Investigator Grant Fine traveled to Mexico and interviewed Angel, who signed a declaration and also confessed on videotape and described in detail how he shot the victim, not Bustos.
Bustos returned to court again, but this time with help from attorneys at NCIP and Keker. He also had a confession from Angel and evidence that Zepeda, the undisputed driver, had named Angel as the real shooter 21 years ago.
Despite the DA’s cooperation in searching for the truth, Bustos doesn’t have a slam-dunk case. The exculpatory witnesses are in Mexico, unreachable. A doctor testified at both trials that he was treating Bustos in Mexico on the day of the murder. This was a lie, a desperate attempt by Bustos’ family to prove his innocence, and so Bustos faces charges of committing perjury by testifying he saw the Mexican doctor who testified on his behalf.
The current DA agreed that Bustos could be resentenced to time-served with an Alford or West plea to manslaughter with a gun – meaning he maintained his innocence during the plea – and also pled guilty to two counts of perjury. The new sentence is less time than Bustos has spent behind bars so he will finally be free.
While not the full exoneration Bustos deserves as an innocent man, it was the only way to guarantee his freedom. Most importantly, he’s happy. He’s going home. He can finally be with his family. He can take care of his 96-year-old grandmother. And he’ll be free.
Unlike the trials on television shows like CSI or Law and Order, the levers of justice are not always employed quickly, or fairly. Sometimes favorable information sits idle, unnoticed in both the prosecution’s and defense’s files. Sometimes an eyewitness’s testimony implicating someone else remains unplayed for a jury. And sometimes, even when all parties are bent toward justice, justice takes the form of taking a deal, just to go home.
“This is a case with incredibly weak evidence, and very strong evidence that someone else did it,” said Bustos’s lawyer at NCIP, Paige Kaneb. “It really speaks to the importance of getting it right the first time, because once you are convicted of a crime, the burdens all shift.”