Could it Be?

I’ve been wondering why Special Prosecutor Stephen St. Martin sought to compel Rachel Palmer to testify without giving her use immunity. I mentioned the question to a colleague, a former Assistant DA, and he said, “well, she wouldn’t testify.”

What do you mean, I asked. If she’s given immunity, she either testifies or goes to jail for contempt.

“Can’t she choose not to accept immunity?”


There is apparently the misconception (fostered by the use of “immunity agreements”) that immunity requires the agreement of the witness to be effective.

To the contrary.

Use immunity is nothing more than the promise of the state not to use particular testimony against the witness. Such immunity is granted by the prosecutor. Some authorities suggest that it should be approved by the court…

On November 25, 1981, the State filed a written motion to grant ‘use’ immunity to the relator with regard to any grand jury testimony given by him.  On November 25, 1981, at which relator was not represented by counsel, the court granted the State’s motion and the relator was ordered to testify before the grand jury.

Ex parte Rodriguez, 629 S.W.2d 757, 758 (Tex. Crim. App., 1982) (en banc).

…while others say that court approval is not necessary…

But even though a prosecutor’s agreement to transactional immunity is not, absent court approval, binding, a prosecutor has discretion to decide what evidence to introduce in a trial.   Court approval is not required for such matters, and so it appears that a prosecutor can engage in a binding agreement to refrain from using particular evidence.   That is, he may bind himself to an agreement for use immunity without court approval.

Graham v. State, 994 S.W.2d 651, 656 (Tex. Crim. App. 1999) (emphasis added for clarity).

With or without trial-court involvement, the witness has very little to say about the matter. Whether she wants immunity or not, if the prosecutor grants immunity and she refuses to answer a question, the prosecutor then files a motion to compel the witness to answer; the judge orders the witness to answer the specific questions that she finds proper because now, having been granted immunity, the witness has no valid Fifth-Amendment objection—”If granted, immunity displaces the dangers of self-incrimination and eliminates the [F]ifth [A]mendment as a ground for refusing to testify.” In re Grand Jury Proceedings, 643 F.2d 226, 228 (5th Cir.1981).

If the witness, having been ordered to answer specified questions, still does not answer, the judge may jail her until she answers or until the grand jury’s term expires, whichever comes first, and fine her $500 per unanswered question. Texas Code of Criminal Procedure Article 20.15.

This is not a complex area of the law, and I would expect a special prosecutor—a former prosecutor, who has presented many cases to grand juries—to be familiar with it. Yet ignorance of the nature of use immunity is the best explanation I’ve found yet (along with “ego” and ahead of “to make as big a media splash as possible) for Stephen St. Martin’s failure to give Rachel Palmer use immunity last week (I asked him today, and he gave me nothing more than a sphinxlike smile). Had St. Martin promptly given Palmer use immunity, as I’ve noted before, either she would have answered all of the grand jury’s proper questions, or she’d be cooling her heels in jail.

8 responses to “Could it Be?”

  1. Interesting.

    One other possibility (side note: as a non-Houstonite I have no idea how high up the DA’s office chain of command Rachel Palmer is) is that St. Martin has reason to suspect that Palmer was deeply involved in whatever misconduct was going on.

    In other words, St. Martin isn’t quite satisfied that Palmer played only a minor role in the misconduct. That’s the catch-22 of use immunity: if granted to someone who then admits to being far more involved than you expected, you’re then barred from using that testimony against that person.

    • I don’t see that as a Catch-22 at all. If you give someone use immunity and she admits to being far more involved than you expected, you’ve got information that you can’t use against her, but that you wouldn’t even have if you hadn’t given use immunity. Better to have it and not be able to use it than not to have it.

      Now, if you wind up prosecuting her you will have to show that the evidence against her wasn’t derived from immunized testimony. So you do as much investigation as you can before immunizing her and questioning her.

      • Good point. The latter is what I was getting at: they may not have enough evidence either way to know whether or not it’s worth going after her personally, so they might want to do a little digging to see if they can come up with something outside of immunized testimony.

  2. I have yet to see any great chess moves by either side in this tail chasing. Although I wish the truth would come out, I am convinced Nixon, .. I mean Lykos and her cabinet will not be sharing that ( the truth) anytime soon.


  3. If you assume that the special prosecutors have a strategy, then their actions speak volumes. While I agree that trying to compel testimony without granting immunity was a waste of time, it tells me two things: (1) they have probable cause to believe the witness committed some offense, probably aggravated perjury, and want to solidify that case without letting her off for it, and (2) they are not interested in prosecuting only that witness, but also one or more persons above her in the chain of command.

    But it seems to me that the easier way to do this, if No. 1 is true, would be to simply indict the witness for whatever offense they believe she has committed, then offer her some form of leniency in exchange for testimony against those other persons. Then again, seeing how things have gone so far, unless they have a VERY strong case, that strategem might be unlikely to succeed.

  4. what I find interesting about this entire situation is what I have been hearing at DWI seminars for years- that DWI, as a crime, implictaes more than just the infraction of PC 49.04- that, as a public policy issue, it involves constitutional safeguards and leads the powers that be into constitutionally questionabe behaviors- I said earlier, in antoher post, that the entire BAT program seems to be costing more heartache that it is worth- the public’s obsession with safety- and politicians insane obsession with re election- has lead to this newest debacle-I believe that,as long as you can but $10 worh of gas and a case of Coors at the same place, same time, DWI is here to say- is any politician willing to tangle with the Valeros and other gas marketeers in trying to get alcohol sales restricted to package stores? answer:no

  5. I think the Special Prosecutors planned it, and planned well. Whereas, this was a cute little circus trick for Rachel that was not completely thought out. By the time they realized the chaos this stunt created, they were in the thick of it, and needed to stick to their guns. Media had already been involved. Ultimately, Rachel violated the cardinal rule: Don’t make the Office look bad. You see, Leitner was on the news already announcing his eagerness to answer the grand jury’s questions on Thursday. He let everyone know he has no intentions of pleading the Fifth.

  6. “This is not a complex area of the law, and I would expect a special prosecutor—a former prosecutor, who has presented many cases to grand juries—to be familiar with it.” Truthfully, though, isn’t “immunity” one of those legal concepts that gets a lot more play on television than in real life? In other words, even an experienced prosecutor might not have all that much opportunity to utilize the concepts… As defense counsel, Mark, have you been involved in a lot of cases where immunity was granted or somehow became an issue? If so, under what (general) circumstances, if you can talk about them?

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