To raise the odds of winning, John Francis Neylan needed some heavyweights in the appellate bar to assist him.  There was Walter Heilprin Pollak of New York; he would soon argue before the U.S. Supreme Court in Gitlow v. New York^[66] (a state criminal anarchy case) and later in Powell v. Alabama^[67] (one of the famous Scottsboro cases).^[68]  Walter Nelles of New York also came on board.  As counsel for the National Civil Liberties Bureau, he had edited a book on the federal Espionage Act cases^[69] before his involvement in Whitney; he would argue Gitlow with Pollak; and subsequently he taught jurisprudence at the Yale Law School.^[70] 

     To the relief and delight of Whitney’s appellate team, the Court granted certiorari.  After the case record had been transferred to the Court, an unusual procedural twist occurred.  Whitney’s attorneys filed a stipulation of the parties before the California state court of appeal, and the court issued an order on December 9, 1924, that amended the record by including the following statement:

     The question whether the California Criminal Syndicalism Act (Statutes 1919, page 281) and its application in this case is repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States, providing that no state shall deprive any person of life, liberty, or property, without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court.^[71]

     Securing such a state court “certificate” and amending the case record for federal high court review was a lawyerly move that Walter Pollak and Walter Nelles knew well.  Indeed, they had done exactly that in Gitlow.^[72]  Now, once again, the savvy appellate advocates were looking down the road to avoid any possible procedural hurdles.  The adequacy of the California court of appeal “certificate” was an issue that would cause legal delay and confusion, but ultimately would make the Supreme Court’s review possible.