Albert Bustamante’s recent death at the age of 86 was marked, appropriately, with obituaries and news stories focusing on his warmth and his accomplishments: rising from the eldest of 11 children of migrant farmworkers to an aide to legendary Congressman Henry B. González, to county commissioner, to the first Hispanic elected Bexar County judge, to congressman.
The political death of Boostie, as he was affectionately known, happened nearly three decades ago, when he was tried and convicted in San Antonio federal court in 1993 of taking bribes prosecutors estimated at more than $300,000. It was a sad event, but this being San Antonio in a more politically rambunctious day, the trial was not without humor — some provided by the judge and some by the defense team.
The trial also featured a masterpiece of “fake news” that would impress some of today’s social media purveyors of fabricated misinformation.
The judge in the case was Ed Prado, a well-regarded jurist who would be promoted to the 5th Circuit Court of Appeals by President George W. Bush and later named ambassador to Argentina by President Donald Trump.
Prado was known for his early use of technology in the courtroom and for his liberal use of humor, which often drew more laughter than it deserved, especially from lawyers, because he was, well, a federal judge.
At one point in the Bustamante trial, five lawyers squeezed together in front of Prado and whispered passionately about whether certain evidence should be admitted. Prado hunched over to hear them, then leaned back and, pretending to be flipping a coin before making his ruling, turned and grinned at the jury.
Perhaps the biggest laugh of the trial, however, wasn’t provoked by Prado. One of the members of an otherwise highly skilled defense team was A.L. Hernden, who admitted he was no scholar of courtroom rules. He hadn’t been in federal court for a criminal trial in nearly 15 years.
One of the bedrock principles of American justice is that defendants are on trial for illegal acts, not for personality traits. Whether they are good people or bad people is irrelevant. That limits certain areas of inquiry. Prosecutors are not allowed to ask witnesses about the reputation of a defendant. Unless …
For some reason Hernden was allowed to question a low-level witness, at which point another member of the defense team, Hernden’s son-in-law Bernard Campion, whispered to the lawyer next to him, “I don’t know when I’m more scared: when the prosecution is asking questions or when A.L. is.”
Things were proceeding without incident until Hernden asked the witness whether he knew Bustamante to have a good reputation in the community.
All the members of the defense team started to jump up. Tony Canales, a heavyweight defense attorney who led the team, won the race and yelled, “Objection, your honor!”
Everyone in the courtroom who knew what was going on burst out laughing. Prado, lawyers on both sides, bailiffs, much of the gallery — and Hernden himself. Canales’ concern: by asking that question, Hernden would “open the door” to allow prosecutors to present negative evidence regarding Bustamante’s reputation. Few veteran politicians would welcome such an exercise.
A week or so after the trial, the San Antonio Express-News ran an article by a legendary Hispanic civil rights leader named Mario Obledo. Obledo, who picked up a pharmacy degree at the University of Texas before going to St. Mary’s University Law School, was a co-founder and general counsel of the Mexican American Legal Defense and Education Fund, or MALDEF.
MALDEF’s militancy made California a more hospitable place for its headquarters than Texas, and Obledo followed the organization’s move to California to become its executive director. He then taught at Harvard Law School until in 1975 newly elected Gov. Jerry Brown named him Secretary of Health and Welfare for the state. President Bill Clinton would award him the Presidential Medal of Freedom in 1998.
So I eagerly read his article. It described an event that happened shortly after Bustamante’s guilty verdict came in, at which point I had rushed back to the Express-News to file my column for the next day.
Obledo described a grand mal seizure suffered by a reporter just minutes after Prado had dismissed the jury and left the courtroom himself.
The reporter, Obledo said, “was in convulsions, twisting and choking. The courtroom was packed with bystanders, FBI agents, federal prosecutors, marshals, probation officers, lawyers and many members of the media. The only person coming to this man’s aid was Albert Bustamante. He grabbed the gentleman, pulled the choking man’s tongue from his throat and held it down so he would not swallow it.”
Obledo went on to say that ironically the reporter “had never written anything favorable about Bustamante.” He added, “In brief, he saved a person’s life. Yet this event was not carried by a single newspaper, TV or radio station.”
But there was a reason that the media didn’t jump on this heart-warming “story”: It didn’t happen.
I talked to more than a half dozen reporters and court personnel who had remained behind and witnessed the seizure of the reporter, a veteran named John Tackett, an old-style by-the-book reporter who had been on the press bus in Dallas when JFK was assassinated.
The reality was that a federal marshal named Bobby Hogeland took the lead while Prado’s staff called EMS. Bustamante did respond quickly, joining others in standing by Tackett and protecting him from falling off the courtroom bench where he was stretched out. Another marshal came with an oxygen tank and mask, which Hogeland held over Tackett’s face. Prosecutor Jackie Bennett held the oxygen tank, and defense attorney Campion checked Tackett’s pockets for medical information.
Fortunately, Bustamante’s wife Rebecca, who had been on trial with him but was acquitted, calmly warded off a few well-meaning people who suggested that someone grab Tackett’s tongue.
From my column the day after Obledo’s piece ran: “I called Dr. J. Scott Luther, director of the Adult Seizure Clinic at the Brady Green Clinic and the leading expert on epilepsy at the U.T. Health Science Center here. He chuckled when I read him the account that said Bustamante had ‘saved a person’s life,’ but he characterized Mrs. Bustamante’s words as ‘superb medical advice.'”
“It is anatomically impossible to, quote, swallow your tongue,” Luther said. He added that putting anything in the mouth of a person having a seizure is “one of the worst things you can do.”
I also called Obledo and asked him if he had been in the courtroom. No, he said, but “several people” described the event to him and he stood by his account. When I told him the response from Luther, Obledo referred to his pharmacy training at UT in the 1950s and said, “That’s not what I was taught in school.”
Obledo also used his column to accuse prosecutors of bad faith and predicted that the verdict would be overturned. It wasn’t, and Bustamante served nearly three years in federal prison.
I would later learn from a trusted source that an old friend of Obledo who had been in the courtroom actually wrote the fictional piece and asked Obledo to submit it under his name. That friend was A.L. Hernden.
It was a comical addendum to a sometimes comical trial. But the fall of Albert Bustamante was sad. The politician of humble beginnings had begun his career honestly, selling himself to humble people as “one of them.” But by the end he had bought a house in the swank Dominion gated community and got the Legislature to draw new lines to include it in his district. What happened? We can’t be sure, but a friend of his offered an explanation at the time of his indictment.
“One person who has known him since he and his wife, Rebecca, lived in a small, unheated house believes it was Washington that changed him,” I wrote back then. “Bustamante has a tremendous need to be needed, to be important to people, this person said. Ironically, the move from county judge to Congress made him less important. At the Bexar County Courthouse, he was the top man. On Capitol Hill he was one of 435. Without common people waiting in line to see him, Bustamante turned to rich friends to make him important.”