"Sustained. Mr. Reilly, try not to ask your client to speculate."
"Yes, Your Honor." Then, to Larry, "Ever seen him before?"
Larry shook his head.
Lang pointed to the court reporter.
Larry took in a breath. "Sorry. I ain't never spoke in court before. No, I never seen him before."
"Since?"
Larry looked at him quizzically, not understanding the game in which he was participating. "In the hall."
Lang's voice dripped incredulity. "In the hall? Here?"
"Right outside that door."
"Your Honor, we have Special Agent Kurt Widner under subpoena. Would you have the marshal ask him to step in here?"
She nodded to the marshal.
Silverstein stood, one last attempt. "Your Honor, I must renew my previous objection. As you noted earlier, this is a prosecution by the DEA, not the FBI…"
"And as I noted, Counselor, I will determine what is or is not relevant. Your continuing objection is noted."
Widner preceded the marshal into the room, somewhat less rosy cheeked and cheerful than when Lang last saw him.
"Thass him!" Larry was pointing. "Thass the same man."
"You certain?" Lang asked.
Larry nodded vigorously. "Absolutely."
"Let the record reflect the witness has identified Special Agent Widner of the Atlanta office of the Federal Bureau of Investigation as the man 'bird-watching' on the defendant's property two days before the defendant was arrested. Your witness, Mr. Silverstein."
The US attorney made a show of reviewing his notes before he said, "No questions at this time, Your Honor, but we reserve the right to cross-examine Mr. Henderson later."
"So noted. Another witness, Mr. Reilly?"
"The defense calls Special Agent Widner. As he is an employee of the government we ask we be allowed to cross-examine."
"Granted."
If Larry had been a nervous witness, Widner approached the witness stand with the reluctance of a man climbing steps to the gallows.
After the preliminary stating of his name and employment for the record, Lang got right down to business.
"You a bird-watcher, Agent Widner?"
The answer was sullen, almost hostile, just as Lang would have wanted it. "Sometimes."
"How long have you pursued that hobby? No, don't look at Mr. Silverstein. I want your answer."
Now a hangdog demeanor. The man knew what was coming. "Meybbe six months."
Lang turned to face Judge Carver. "Your Honor, I served a subpoena duces tecum on the government regarding a certain memo. I'd like it produced before we continue."
Silverstein rose slowly. "Again, Your Honor, we object as to relevance." Dusty Roads tugged at his sleeve and they exchanged whispers. "Plus as an interoffice communication, we contend it's privileged and not subject to production."
Agent Widner and Silverstein were not the only people who had a good idea where all this was headed. Judge Carver leaned forward, hand extended. "We need more, not less openness in government. The memo, Mr. Silverstein."
Silverstein made a show of digging in his litigation bag before asking, "May we have a brief recess, Your Honor? I'd like to confer with Mr. Reilly."
The judge gave a half glance, half glare at both lawyers. "For what purpose?"
This time it was Roads who responded. "We think we have a very attractive offer for Mr. Reilly's client."
The judge again looked from one lawyer to the other. "Fine. Mr. Reilly, I want to remind you this court is not bound by any agreement as to sentence upon entry of a plea of guilty. I'm sure the same is true in the northern district where you practice."
"Understood, Your Honor."
"Five minutes, then."
And she was gone.
It was almost surprising what a change the brief hearing had wrought in the dispositions of the government's lawyers. Both Silverstein and Roads were all smiles. Both extended their hands.
"Lang, we're prepared to reduce the charge from possession with intent to distribute to simple possession," Silverstein said. "Eighteen to twenty-four months, a reduction for participating in a rehab program, 10 percent off for good behavior and your man walks."
"You're kidding," Lang said. "Nice try, having your 'bird- watching' special agent stumble onto my client's property but it won't wash. The fact one agency makes a discovery and another prosecutes the crime won't work, fruit of the poisoned tree. A warrantless search is still illegal whether made by the FBI or the post office unless you can show probable cause, which you can't. If you think Judge Carver is going to swallow the bird-watching crap, you might try and sell her the state capitol building. Particularly in light of that memo suggesting, what was it? Oh, 'interagency cooperation.'"
A great deal of congeniality drained from Silverstein. "There's no way you could have known about that memo legally. How'd you find out?"
"A little bird I was watching on my own."
There was a chuckle, choked back to what sounded like a snort from Larry.
Silverstein began to flush red from the neck up. "You can't… If I find out you came by that memo in any way that's illegal…"
"By the time you find out how I learned about it, you'll be too busy denying it existed. Or too busy handling appeals when the news of the DEA's scheme is made public."
For a second, Lang thought the man was going to choke. "You can't…"
"Last time I looked, the First Amendment was still in effect. I'd guess the media would love the story."
Silverstein took a deep breath. "OK, OK! I'll make a deaclass="underline" your man walks and you forget you ever saw the damned memo."
"How soon can you get the paperwork complete to release the bond and put my client on the street?" "I'll order his release immediately."
No one had noticed Judge Carver's return to the bench. "You can pick him up at the jail as soon as he changes out of his prison jumpsuit." She smiled. "The government can't afford to give them away as souvenirs to former inmates."
Both government lawyers began repacking their briefcases.
"Not so fast, Mr. Silverstein, Mr. Roads. The court wants a word with both of you."
Her tone indicated it would not be a pleasant word, either.
Outside the jail an hour later, Larry was jabbering joyfully like a child on Christmas morning. "I can't believe I'm really outta there!" He grasped Lang's hand. "We few, we happy few! We band of brothers!"
Lang was unsure his victory equaled that of King Henry at Agincourt nor that he wanted Larry, the classics-reading marijuana farmer, as a brother.
His enthusiasm undiminished, Larry continued. "Don't unnerstan' how you done it, Lang, I really don't."
"Do you care?"
"Guess not. All I know, next time I need a lawyer, I know who to call."
Lang suppressed a groan.
"If it's any comfort to you, I'd bet Judge Carver is still reaming Silverstein and Roads a new asshole, giving them a lesson in constitutional law they won't soon forget." He pointed. "Car's this way. I'll drive you back to the farm." Lang extended his BlackBerry. "Want to call your wife?"
"I done it from the jail. She says to give you a big kiss for her."
Now there was an unattractive picture. "Maybe we'll let her do that herself."
They were perhaps halfway to the parking lot when Larry asked, "One thing: You had a motion to depress the stuff they took from my place, the marijuana. What was that all about?"
"If the government came by evidence illegally, that is, trespassing without a warrant, then that evidence can't be used. If they couldn't use the marijuana, then they can't prove you grew it or even that there was any."
Larry nodded, no doubt agreeing with the wisdom of such a rule. "But it was the FBI…"
"That's what we call 'fruit of the poisoned tree.' Once evidence is obtained illegally, it can't be made legal no matter who wants to use it."
"But if-"
The BlackBerry chimed. With a little luck, the interruption would end the lecture on evidentiary jurisprudence.
An e-mail from Francis:
Got the information you wanted. Or at least all I'm