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Do a JoB—Harvey tHe litiGator
was no probable cause for the arrest, because the only information supplied by the unnamed informant that the arresting officers cor- roborated consisted of what I referred to as neutral facts, not facts that tended to be of a criminal nature—namely, that Manning drove a particular car and would visit the address in question at approxi- mately the same time of day a few days each week, (2) that the entry violated a federal statute that required the police to knock, announce their presence, and either be refused entry or receive no positive response at all before crashing in, and (3) the very technical argu- ment that the indictment failed because it was “duplicitous,” a term of art that meant that more than one crime had been charged in a single count.
Walpin, a former prosecutor, could not understand the probable cause argument no matter what I said or showed him. It was there- fore removed from the brief. When the time came for oral argument in the Second Circuit, however, two judges of the three-judge panel questioned Walpin about probable cause, wondering why he had not pressed an argument concerning that subject. I watched (with some amount of satisfaction) as Walpin danced around the issue and somehow secured permission to file a supplemental brief, “expand- ing on our argument.”
I wrote that brief that night, it was filed two days after the argu- ment, and three months later we got the decision: the split panel (with the chief judge in the majority) reversed Manning’s conviction on the basis of the probable cause argument. At no time did Walpin acknowledge to me that it had been correct to press the probable cause argument or thank me for my work on the case.
(Ultimately, the government successfully petitioned for a rehearing by all nine judges of the Second Circuit and obtained an affirmance of the conviction in a split decision. The petition for cer- tiorari that I drafted, while Max railed at me for spending time on a nonpaying matter, was denied, with Mr. Justice Douglas dissenting and voting to hear the case.)
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