DeLay Invited to Testify, Lawyer Concedes

What would Judge Judy say? The attorney representing Rep. Tom DeLay (R-TX) told the Houston Chronicle that the former House Majority Leader had been invited to testify before the grand jury investigating possible illegal campaign contributions. This is in direct contrast to DeLay's assertion on MSNBC:

"Never asking me to testify, never doing anything for two years," DeLay said in the interview. "And then, on the last day of his fourth or sixth grand jury, he indicts me. Why? Because his goal was to make me step down as majority leader."

It is also in direct contrast to a statement from the grand jury foreman:

The foreman, William M. Gibson Jr., a retired state insurance investigator, said the Travis County grand jury waited until Wednesday, the final day of its term, to indict him because it was hoping he would accept jurors' invitation to testify.

Judge Judy would say: one lie colors all other statements.

In August, DeLay did meet with Ronnie Earle but the session was not conducted under oath. According to Dick DeGuerin, DeLay's attorney: "Ronnie Earle was saying, 'This grand jury is ready to indict you.'"

Jury Foreman Gibson said "there was an open invitation" but the jury did not force testimony via subpoena. DeGuerin agrees with prior counsel recommendations that DeLay not testify before the grand jury:

"The prosecutor has all of the advantages in a grand jury setting. The prosecutor controls the information a grand jury gets. The defense has no right to call witnesses, to cross-examine or to be present to be sure that the rules are followed," DeGuerin said.

DeLay's first day in court is set for 21 October.

Role of the Grand Jury
A grand jury determines probable cause, not "guilt" or "innocence". Is there probable cause that a crime has been committed? According to the American Bar Association:

Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.

Regarding access to counsel, another of DeGuerin's reasons for supporting DeLay's decision not to testify:

In the federal system, a witness cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer. A few states do allow a lawyer to accompany the witness; some allow the lawyer to advise his or her client, others merely allow the lawyer to observe the proceeding.

The grand jury system was established by the fifth amendment to the Constitution. All but two states and the District of Columbia use grand juries to indict, according to the University of Dayton law school; Connecticut and Pennsylvania have retained the investigating grand jury. A subset of these states, 23, require that grand jury indictments be used for specific crimes; Texas is in this subset.

Earlier Coverage. See the Handbook for Federal Grand Jurors (pdf). Tip to Basie!.

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Grand Jury, Politics, Tom Delay