"To the best of my ability."

Dave won his second jury trial this week on a felony burglary/theft of property case involving a generator. That gives him a personal record of 2 -0. While the victory was sweet, I think the highlight of the trial happened just before the defense (Dave) rested and they moved on to closing arguments.


Let me set it up for you.


Dave's client, we'll call him Judd (to protect the innocent?), and the co-defendant (a.k.a. partner in crime, whom I'll call Bob), are no strangers to the criminal justice system. Both men had to be shipped to the county jail from prison for this trial. They are most likely guilty of some crime in this case, even if it isn't what they were charged with. That's just the way it works when you are providing indigent counsel.


The co-defendant, Bob, happened to be one of the state's primary witnesses. Obviously, if anyone could implicate Judd, it would be the man that was with him at the time that the crime allegedly took place. Dave and the district attorney both interviewed Bob on several different occasions to get an idea of what he would say on the stand. The first story he told Dave was that Judd was present, but he did not steal the generator in question. He, Bob, stole it and they pawned it together (pawning a stolen generator carries a receiving stolen property charge, which is not a felony). Early last week when Dave met with him, he told him that he had found the Lord while in prison (Amen.) and he was conflicted because he needed to tell the truth but it would implicate Judd. According to that version of the tale, he and Judd did the stealing and the pawning together (stealing a generator is a felony - which Judd was charged with). He told this same story to the district attorney the next day. This was on Monday and Tuesday of last week. Well, it seems that while the two men waited in jail together, they may have consulted a bit on the actual events of that day.


When Dave spoke with Bob again on Monday morning, Bob mentioned that he thought he should plead the 5th (refuse to testify because his testimony might incriminate himself). According to Dave, when people start talking about pleading the 5th, things start getting interesting. When Bob took the stand for questioning by the district attorney, he told a different tale. While sitting on the cell block in the county jail, he had invested some time in remembering the events of that day. It seems that neither of them stole the generator, they found it and then pawned it. As you can imagine, the district attorney was incensed at this unexpected change in the story. He questioned Bob again and again, asked him why his story was different this time (apparently, Bob was on a lot of drugs at the time the crime allegedly took place and, thus, his memories are foggy), etc. When Dave cross-examined Bob, the following conversation took place.

Dave: Bob, did you take an oath to tell the truth when you talked to the district attorney last week?

Bob: No.

Dave: Did you take an oath to tell the truth today?

Bob: Yes.

Dave: Are you telling the truth today?

(One would expect the witness to answer "yes" or possibly "no;" after all, lying under oath is a criminal offense.)

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Bob: "To the best of my ability."

The judgle let that answer stay on the record. Maybe that isn't very funny to some, but Dave and I found it hilarious. Are we all exempt from perjury charges if we are unable to tell the truth?