Anita Whitney was 52 years old when she was convicted, and she would be 60 years of age before she finally emerged from the shadow of prison.  Her trek in the appellate process would prove arduous, unpredictable and long, lasting more than seven years.  The team of three who led that journey in its earliest stages were John Coghlan and J.E. Pemberton, her trial lawyers, headed by John Francis Neylan.  A “respectable, conservative California legal talent,” Neylan was a “Hearst lawyer and a prominent counsel for a large number of local corporations.”^[51]  Whitney’s appellate team filed an opening brief (July 21, 1920) and a closing brief (April 8, 1921) before the Court of Appeal of California in San Francisco, one of the state’s six intermediate courts of review.^[52]  Those briefs laid out a plan of attack against the criminal syndicalism statute itself, and against its application to the “refined, cultured, intellectual woman who has spent her life and private fortune in charitable and philanthropic work for the relief and betterment of her fellowmen.”^[53] 

     The appeal moved along three strategic fronts:     

1. The criminal information did not state the acts constituting a public offense with enough particularity or in ordinary and concise language: Thus, Whitney was denied “the right to be sufficiently informed of the nature of the accusation against her, to enable her to prepare her defense.”^[54] 

2. The evidence presented by the prosecution at trial was insufficient to justify the verdict: Anita Whitney may have held unconventional beliefs, but “mere opinion cannot be punished as a crime.”^[55]  Moreover, “[t]here is not one scrap of evidence even remotely suggesting that she ever endorsed any act of violence either by [the Industrial Workers of the World or the Bolsheviks of Russia] or by individuals belonging to these organizations.”^[56] 

3. The California criminal syndicalism act is void for vagueness:  If it were “permissible to introduce in evidence manifestoes of the Bolshevist Party of Russia to show the character of the Communist Labor Party of Oakland,” then the statute’s terms are too vague and indefinite to be susceptible to reasonable definition.^[57] 

All three arguments identified classic due process violations.  No specific First Amendment violations were alleged.  Before the appellate court rendered its ruling, however, Whitney’s counsel filed a supplemental brief^[58] to emphasize the federal unconstitutionality of the California criminal syndicalism act and Whitney’s conviction.  “We desire at this time to raise herein a federal question,” the brief asserted.  “[M]ere membership in an organization, without the doing or commission of any overt act is not a crime; it is a constitutional right and privilege; and the legislature cannot otherwise provide.  .  . .   By attempting to punish her for the exercise of her legal and constitutional right, the state is abridging the privileges and immunities of a citizen of the United States.”^[59]