Could it Be?

 Posted on December 20, 2011 in Uncategorized

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.

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