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SPEAKER_00: The God of the in the frame.
SPEAKER_02: Earlier this year, the city of New York closed off several blocks around the Manhattan Criminal Courthouse. Instead of early morning commuters, the sidewalks around the building were flooded with reporters, photographers, and camera people. They were there to capture the arraignment of former President Donald Trump.
SPEAKER_02: Members of the media were so desperate to get a good shot that they camped out overnight outside the courthouse. And it's because people all over the world demanded an immediate visual record of this historic moment. Viewers were hoping to watch Trump's perp walk into the courtroom or see his mugshot or see a video of him being read his felony charges. Instead, the image that was everywhere from The Guardian to The Washington Post, even the cover of The New Yorker, that image was a hand-drawn courtroom sketch.
SPEAKER_12: I cannot stress to you how much I really, really, really did not want to begin this episode talking about Donald Trump. But this was a really great sketch.
SPEAKER_02: Producer Vivian Le.
SPEAKER_12: The sketch was done by a New York-based artist named Jane Rosenberg. She portrayed Trump at a three-quarter profile, his arms crossed in a defiant manner. Somehow Rosenberg managed to perfectly encapsulate his hair with just a few messy strokes of an oil pastel. His face was frozen in a deep cutting scowl, emanating what I can only describe as sourpuss energy. I've always found courtroom art fascinating. When I look at a sketch, it doesn't feel like I'm looking at a moment frozen in time. It feels like I'm looking at a memory of a moment, like I'm seeing it through the artist's eyes and watching the gears turning in their brain.
SPEAKER_05: I was in love with it from the very beginning. It's always different. It's emotional. I carry around stories with me, you know, in my head for months and months.
SPEAKER_12: This is Mona Shafer Edwards, a courtroom artist based in Los Angeles. It's very satisfying to see justice being done and to have the historical presence and
SPEAKER_05: to watch history unfold. So I have covered some of the most important trials in American history in the last 35, 40 years.
SPEAKER_12: She's drawn a ton of big cases. Michael Jackson, the Night Stalker, Harvey Weinstein. I can imagine LA is, you get a lot of work.
SPEAKER_05: Rife with disaster, yes. I get a lot of work. But I think the most fascinating thing to me about courtroom illustration is that it
SPEAKER_12: still exists because you can't really talk about courtroom illustration without addressing the elephant not in the room. Photography. What can a really good courtroom illustrator do that a photographer can't do, like specifically? Like what's your edge?
SPEAKER_05: I can't compete with photography. You know, I'm not going to justify what I do. I can't compete with the camera.
SPEAKER_12: Thanks to a camera, pastel on paper feels like an archaic way of documenting some of the most important legal events of our time. Cameras are faster, easier, and more accurate than a human illustrator. But for some reason, courtroom artists are still constantly used in high profile cases.
SPEAKER_02: The answer to how courtroom artists have managed to survive the camera for so long is wrapped up in a decades long tug of war between transparency and integrity in the courts. It's a nearly century long battle that centers around the question of whether it's even possible to observe the justice system without changing the course of justice.
SPEAKER_12: It's a tension that came to a head for the first time in 1932.
SPEAKER_14: We've always been big on crime in America, Vivian.
SPEAKER_12: This is Thomas Doherty, author of a book called Little Lindy is Kidnapped, which focuses entirely on the media coverage surrounding the kidnapping and grisly murder of the infant son of Charles Lindbergh.
SPEAKER_02: Lindbergh's reputation has since tarnished because of his isolationist views and his political sympathies. Nazi!
SPEAKER_12: But at the time, Lindbergh was one of the most well known and most well respected men
SPEAKER_02: in the country when tragedy struck.
SPEAKER_14: On the night of March 1st, 1932, in their estate in Hopewell, New Jersey, someone comes in to the second floor nursery, climbs up on the ladder, goes into the baby's nursery and takes him away that night.
SPEAKER_09: Not a single bed is overlooked, not a single suspicion unverified in the search for the most famous baby in the world. Innocent 20 months old son of the lone eagle.
SPEAKER_14: And the kidnapper leaves a note demanding $50,000 in ransom. Sadly, the Lindbergh son was never recovered alive.
SPEAKER_02: The child's body was discovered less than five miles from the Lindbergh home, and police later charged a German born immigrant named Bruno Richard Hauptmann with the murder.
SPEAKER_14: And then on January 2nd, 1935, the crime of the century gives way to the trial of the century.
SPEAKER_12: Everyone wanted a taste of this story, and the press was more than happy to provide that access. About 700 reporters, photographers and camera operators descended upon New Jersey where Hauptmann was standing trial. Oh, there's a media scrum.
SPEAKER_14: Look at this scene, a courtroom so packed that there's not an inch of space available,
SPEAKER_01: while excited chatter and buzz fills the air.
SPEAKER_12: At this time, motion picture cameras, which had only recently entered the courtroom, were these clunky masses of metal that took up a lot of space and made a whirring noise. And even still photographers weren't subtle.
SPEAKER_14: Still photographer had those old fashioned light bulbs in their camera to give you the flash and the reporters that take the bulb out of there, out of the light and then toss it on the floor or to make a popping sound. So that could be quite intrusive.
SPEAKER_12: The judge was concerned about all the distraction photographers and camera reels would have. So he strictly forbade any photography or motion picture capture during the course of the trial. Camera operators were only to capture the moments before court was in session and after.
SPEAKER_14: The news drills promise him on their honor that the news drill camera they have in the balcony of the courtroom will only be turned on when people aren't on the stand doing actual testimony. Believe it or not, they didn't do that. During the dramatic cross-examination between Bruno Richard Houtman, the accused kidnapped murderer, and David T. Wilentz, the prosecutor, when they're having this really vociferous confrontation during that moment, I think if you or I were a newsreel guy, we might have done the same thing, which is we betray the judge, turn on our cameras and record the actual confrontation on film.
SPEAKER_12: During this rapid cross-examination, Houtman admits to having lied to police on the stand.
SPEAKER_03: Did you lie to him or did you tell him the truth? I said nothing to him. Come on.
SPEAKER_02: I did, yes. Shortly after Houtman's questioning, the newsreel footage of his interrogation spread quickly, playing to packed movie houses around New York City. Eager patrons lined up around the block to watch the bombastic courtroom scene.
SPEAKER_14: The public's sorry. Everybody in America's riled up. And when the jury finally goes in to deliberate the case, there are packs of people around the courthouse and the mob starts to get a little unruly and disruptive as the jury deliberation goes on for a few hours longer than most people thought it should have gone on. And they start screaming, kill the German, kill Houtman. A rock goes through the window of the courthouse. But the jury returns this verdict.
SPEAKER_02: Bruno Houtman was found guilty and was sentenced to death by electric chair.
SPEAKER_12: Although it's unclear how much or even if the leaked footage had any impact on the verdict, the world was appalled by the carnival-like atmosphere that the press had created during the trial. Many in the judicial system believe that the presence of photographers, newsreels and other journalists made a complete mockery of the court.
SPEAKER_14: I think the prime argument you might make is a baby has been murdered and we want to see justice done. And of course, we want to give the accused proper due process. And we don't want to allow anything to sort of interject itself into what at its best is really a solemn process, a democratic process, one in which we, I think, genuinely want to see justice done.
SPEAKER_12: There were also arguments that cameras didn't just tarnish the solemnity of the courtroom process. They could possibly interfere with our constitutional right to a fair trial. After all, how could a trial be fair with all of this outside passion and influence brought into the courtroom?
SPEAKER_02: So in direct response to the Houtman trial, the American Bar Association adopted something called Canon 35.
SPEAKER_12: Canon 35 condemned the use of photography, motion picture and radio recording within the confines of the courtroom. It wasn't a law per se, but a code of ethics that cautioned against recording technology in the trial process. And many states adopted that policy.
SPEAKER_02: In 1946, the U.S. government went even further and expressly banned all cameras from federal courts.
SPEAKER_14: And so starving sketch artists are the people that really, I think, benefit from this from Canon 35.
SPEAKER_12: The rise of the courtroom artist was also driven in part by television. By the 1960s, television had become a staple in most American households. Nightly TV news programs were evolving to cover the big events of the day, and there's more demand than ever to see inside high profile court cases. But with no cameras allowed in, the courtroom was a visual black box.
SPEAKER_02: So television networks decided that allowing artists into the courtroom was an acceptable loophole that would follow the spirit of Canon 35 while still giving the public a peek inside the court.
SPEAKER_12: One of the first people to sketch a trial for television was a man named Howard Brody. Brody was hired by the CBS Evening News in 1964 to create the visuals for the trial of Jack Ruby, the man convicted of killing Lee Harvey Oswald. Other networks followed suit and began teaming up with artists in the courtroom. Brody's work turned courtroom illustration into a real job and broke open the profession for a number of other aspiring artists.
SPEAKER_06: He had completed a major, major murder trial and I saw those drawings and was just so mesmerized. I knew somehow that I could do the same thing.
SPEAKER_12: This is Pat Lopez. She's an artist based in New Mexico. After Pat saw those Howard Brody drawings on CBS, she called up a producer at her local news station and scored a meeting. So I ran to the station.
SPEAKER_06: He had me draw the noon anchor as he was giving the news right in front of him. And then he said, and he walked in off the street.
SPEAKER_06: I said, yes, sir, because I needed a courtroom artist for the following Monday. So that was my first ever challenge. And I guess I passed the test because I've been doing it ever since.
SPEAKER_12: Pat's been doing courtroom illustration since the 1970s and has created the courtroom sketches for trials like Enron, the Matthew Shepard murder trial, and the Oklahoma City bomber. She says that part of the reason that courtroom artists took off is that they didn't carry the same baggage as photographers.
SPEAKER_06: Everyone knows when the camera's in the courtroom, but you've got someone like me sitting on the front row quietly sketching. You know, no one really knows what I'm doing. They can't see what I'm doing.
SPEAKER_02: Unlike a photographer holding up a camera, a sketch artist has the ability to quietly blend into the room. No one was worried that the trial participants would become distracted or that witnesses would feel too intimidated to testify or that jurors would be fearful that their privacy would be at stake.
SPEAKER_06: This is what the judges wanted was some kind of protection for the people in court to protect justice. I think that they looked at courtroom art as the safest way to do this.
SPEAKER_12: Artists like Pat are usually hired directly by a television network in order to cover high profile cases for broadcast. It's an incredibly high pressure job. You need to work accurately and just as important, you need to work quickly.
SPEAKER_05: There are tons of fabulous illustrators, but there are very, very few people who can look at a scene and get it down in five minutes, 10 minutes, 20 minutes and tell the story that fast.
SPEAKER_12: This is artist Mona Shafer Edwards again. I know what I need to do.
SPEAKER_05: We wait for that moment. I'm sure every illustrator will tell you the same thing. You wait for the aha moment. I mean, that's, you know, somebody collapsing or screaming or gesturing or jumping over a table to try and strangle someone. I mean, that's, that's like gold.
SPEAKER_12: One of my favorite pieces of courtroom art is from another illustrator named Bill Robles. He documented the trial of Charles Manson and at one point Manson became so agitated that he lunged across the courtroom to attack the judge. Manson had his arms outstretched while a bailiff tackled him around the waist. Robles had just a split second to scratch out the frantic scene using a pen and markers. Stylistically, it almost looks like an illustration from a deranged rolled doll book.
SPEAKER_05: There was a moment in federal court, Whitey Bulger, who was a bad guy, and he saw me sketching him. Now we were behind, he was behind glass, so he was far away from me, but he saw me sketching him and he looked at me and he smiled and he pointed at me and wagged his finger like, no, don't do that. And even though he was, I don't know, I'm going to say 15 feet away, 10 feet away and behind glass, he really scared me.
SPEAKER_12: Pat Lopez told me that she's also seen a lot of difficult things throughout the course of her career.
SPEAKER_06: The energy in the courtroom was really, really dark at times. The people coming into the court had so much grief and energy of hate and energy of, you know, revenge. And for many of these trials, to have an artist in there to create the scene in the court as to what happened, that's so much easier.
SPEAKER_12: The courtroom is notoriously a place where people experience the worst days of their lives. One thing that Pat sees her work and the work of other sketch artists doing is communicating the story of a trial while sidestepping any extra layer of tension that cameras might bring along with them into the courtroom.
SPEAKER_02: But not everyone is satisfied with the curated calm of a courtroom sketch. Proponents of cameras in courtrooms think that the public shouldn't have to rely on being told what was happening in a court of law. They should be able to see it in action for themselves.
SPEAKER_13: If you're presiding over literally life and death for people, I think you have to be prepared to be subject to that degree of public scrutiny.
SPEAKER_12: This is Jane Kirtley, Silhau Professor of Media Ethics and Law at the University of Minnesota. She's been a longtime advocate for the expansion of camera access in courtrooms. To me, the fundamental question is, how can the public trust what's going on in the courtroom
SPEAKER_13: if they don't know what's happening? And if what's happening there is not what we as a society want to have happen, then the public should be able to know that and should be able to take steps to rectify that situation. Keeping them out only makes the situation worse and makes the system less accountable.
SPEAKER_12: From the beginning, Canon 35 was more of a strongly worded suggestion than a law. By the 1960s, three decades after Canon 35, new sensibilities started to erode the wall erected against cameras in the courtroom. Those who were pushing for cameras argued that they offered increased oversight of the justice system. Meanwhile, television and photojournalists were making the case that with their quieter, modern camera technology, their presence was now just as unobtrusive as the discrete courtroom artist. Far from being intimidated, witnesses and lawyers would barely notice the cameras were
SPEAKER_02: there. Media advocates also believed that televising trials offered a great educational resource for people who couldn't physically be in a courtroom but wanted to learn more about the legal system.
SPEAKER_12: So beginning in the 1970s, different state courts began ignoring the Canon and experimenting with broadcast coverage of judicial proceedings. By the 1990s, most states allowed some sort of camera access.
SPEAKER_02: And the experiments, for the most part, went well. Cameras became so common in the courtrooms that by 1991, there was a whole television network dedicated to it called Court TV. The mayor of the people of the state of California, Bruce Elizabeth Ann Broderick.
SPEAKER_07: Order of business this morning, ladies and gentlemen, is we'll start with the opening statements by the lawyers. An opening statement is...
SPEAKER_02: Jane Curtley says that soon even federal courts, which had a much more stringent ban on cameras since the 1940s, also began testing the waters and televising their trials.
SPEAKER_13: Federal experiment was going very well by everybody's estimation. I was on a panel at the American Bar Association annual meeting one year and we were talking about it and only complaint that was coming from the federal judges were that the media weren't coming often enough to record the trials. Why aren't they coming to our fascinating copyright cases and things like that? But nobody had any complaints about it.
SPEAKER_12: Huge high profile cases like the Menendez brothers and Jeffrey Dahmer were all aired gavel to gavel on television. With video cameras becoming more and more the norm in the 1990s, some courtroom artists were worried that their jobs were in danger. What was the point of a network hiring an illustrator when every single trial moment was instantaneously documented live on television?
SPEAKER_05: I think all of the courtroom artists thought that was going to be the end of courtroom art.
SPEAKER_12: Courtroom artist Mona Shaffer Edwards again. She actually started making backup plans for her career around this time.
SPEAKER_05: It was very funny because I thought, okay, I'll go back to fashion because I still like it and I'm good at it. And I thought, okay, well, this was a nice run.
SPEAKER_02: And then the O.J. Simpson case happened.
SPEAKER_00: If you've been watching television over the past couple of hours, you've been watching the search for O.J. Simpson and that search ended tonight.
SPEAKER_02: Beginning in 1995, the city of Los Angeles began the grueling eight and a half month criminal trial of O.J. Simpson.
SPEAKER_12: If you were alive in 1995, your lasting memory of this trial was probably that it devolved into a total joke.
SPEAKER_14: They have come from across the globe bringing their satellite trucks, pulling miles of cable.
SPEAKER_11: I found 49 cameramen, 25 anchors, 20 producers I could see, but a lot of them were inside a truck.
SPEAKER_12: The presiding judge, Judge Lance Ito, seemed absolutely incapable of managing court romantics. Remember these words. If it doesn't fit, you must acquit.
SPEAKER_12: And most observers blame the bloated media presence.
SPEAKER_05: It was totally a circus, a complete circus.
SPEAKER_12: Although cameras were, famously, allowed inside the courtroom for this trial, Mona Shaffer Edwards was also hired to sketch both the preliminary hearing and the criminal trial alongside other media. She says that the clownery was palpable.
SPEAKER_05: In the preliminary trial, they did have some witnesses who, funnily enough, by the time it was the criminal trial, had total makeovers. And I do remember Johnny Cochran, who was a lovely man, he came into court every day and he would adjust the lectern right where the camera angle. And then the witnesses, they were dressed up, they had a hair done, it absolutely colors a witness's testimony to have a camera on them.
SPEAKER_12: For media transparency advocates who had argued for decades that camera technology wasn't disruptive, that witnesses wouldn't be intimidated by the camera lens, that lawyers weren't going to put on a dog and pony show, that the integrity of the justice system wouldn't be compromised. The O.J. Simpson trial seemed to prove the exact opposite.
SPEAKER_02: Comedians made a mockery out of this double murder trial for eight straight months. Jay Leno even featured a chorus line of Judge Ido impersonators performing choreographed jazz numbers every night. State and federal judges all over the country saw this unfurling live on television and took it as an example of what could happen to them if they brought cameras into their courtrooms.
SPEAKER_13: And judges, federal judges who I know, respect and like, who had been all on board for cameras suddenly said, we can't have this. This is a disaster in the making.
SPEAKER_12: So once again, the snake rounded back on its own tail as judges across the nation unceremoniously banished recording technology from their courtrooms.
SPEAKER_13: And cameras are still prohibited at the federal district court level except for ceremonial proceedings like swearing in for citizenship, that sort of thing. And you can draw a straight line from the O.J. Simpson trial to that policy. Accordingly, this circularity granted a stay of execution for sketch artists.
SPEAKER_06: Of course, you know, crime never stops, right? And we started having these amazing, just really horrific crimes.
SPEAKER_12: Courtroom artist Pat Lopez again, she says that the post O.J. years were actually a gold rush era for courtroom artists like her.
SPEAKER_06: In fact, I had three trials going in one day. I started out in Dallas and they flew me to Houston for Selena. There was a hearing there. And then I went back to Waco in one day. I could not turn around. I had so much work from 1994 until 1999, probably because of that.
SPEAKER_02: Despite years of push and pull and push, cameras are still kept in a legal gray area. They're still banned in all federal courts and in most state and criminal courts, it varies from case to case. And although today we've developed much more discrete ways to record a trial like audio and video streaming, many judges are still hesitant to bring any sort of recording technology into the courtroom.
SPEAKER_12: To be honest, I came into the story slightly skeptical of cameras in courtrooms. As a person who literally talks into a microphone for a living, I am acutely aware that if someone knows they are being recorded, it can at least subtly change their behavior. Like, do you think my voice actually sounds like this in real life? No.
SPEAKER_02: In person, Vivian sounds more like Jennifer Coolidge.
SPEAKER_12: So when the justice system already feels so fragile, when there's so much on the line for the defendant and the victims of the case, when someone's life could be on the line, I wondered why risk introducing any element, no matter how small, that can negatively impact what happens in a court of law. That is until one case.
SPEAKER_10: ...to bring you live coverage of what is certain to be one of the most closely watched and potentially consequential trials of our time, the murder trial of Derek Chauvin.
SPEAKER_02: In March of 2021, the trial of Derek Chauvin, the police officer who murdered George Floyd, began in Minneapolis, Minnesota.
SPEAKER_12: At the time of the trial, Minnesota actually had very stringent rules regarding electronic media in criminal courtrooms. Curtley says that the state had already been incredibly reluctant to allow cameras at all. Essentially, everyone involved from the defendants to the prosecution had to give permission to allow recording during the trial process. If anyone objected, that was the end of it. And practically, that meant that there were never cameras in trial.
SPEAKER_02: The prosecutor in the case did oppose televising the trial. But because the COVID lockdown drastically limited the number of press in the courtroom, and because the case was of such high public interest, the presiding judge, Peter Cahill, went against a Minnesota precedent. Judge Cahill decided that the entirety of the trial needed to stream live for the world to see.
SPEAKER_13: Had we not had the pandemic restrictions that were in place at the time of the Chauvin trial, I think it is unlikely, although not impossible, that Judge Cahill would have consented to having cameras in the courtroom.
SPEAKER_02: Judge Cahill set a lot of ground rules for the broadcast in order to mitigate problems before they happened. Jurors were not allowed to be recorded. There were restrictions on which witnesses could be filmed, and the movement of the cameras was limited.
SPEAKER_12: But in a break with history, the broadcast of the trial went off nearly hitch-free.
SPEAKER_02: There were no antics, no one reported being intimidated. And after this experience, the lead prosecutor, who had originally opposed the broadcast, changed his view entirely and is now a supporter of cameras in the court.
SPEAKER_13: I think this went as well or better as could ever have been expected under the circumstances.
SPEAKER_02: In March of 2023, largely influenced by the Chauvin trial, the Minnesota Supreme Court ruled to expand camera access in state criminal trials. Starting in 2024, permission from both the defense and the prosecution will no longer be required to broadcast courtroom proceedings.
SPEAKER_12: And earlier this year, Senators Grassley and Durbin introduced a bipartisan bill that would bring cameras into the Supreme Court for the first time. The court has never really been known for being super chill about things like change or technology or transparency. And former Justice Souter once famously said, quote, the day you see a camera come into our courtroom, it's going to roll over my dead body, end quote. So whether that bill would ever actually pass is hard to say. At least for now, courtroom artists are still safe. I didn't see a future in it 20 years ago either.
SPEAKER_05: I kept thinking this is the last year, this is the last year, but it keeps happening.
SPEAKER_12: Courtroom artist Mona Shaffer Edwards again. I don't know how it's going to go, but it's been great and I love it.
SPEAKER_05: And as long as I can do it, then I would like to just keep on doing it.
SPEAKER_02: There are some trials that people generally agree are better served by courtroom artists than by cameras. Sensitive cases that involve domestic abuse, sexual assault, or that include minors. And there's no guarantee other televised high profile cases would go as smoothly as the one in Minnesota.
SPEAKER_12: Jane currently acknowledges that part of the reason why the live stream of the Chauvin trial was so well received was because it ended with a conviction. Had it gone the other way, who knows what the public response would have been. But camera advocates think that if actually seeing our justice system in action makes you angry, maybe it's because you should be angry. You can't fix a system if you can't see it's broken.
SPEAKER_02: Coming up, Vivian helps me get to the bottom of a Supreme Court mystery after this. When you're working on the go, how can you make sure the confidential information on your laptop screen is safe from wandering eyes? 3M has the answer with the new 3M Bright Screen Privacy Filter. Using Nanoluver technology, 3M Bright Screen Privacy Filters deter visual hackers while providing a 25% brighter experience over other privacy filters. In fact, it's 3M's brightest privacy filter yet. The perfect balance of screen clarity and visual privacy. It's a new type of privacy filter built for an era where our screens are wherever we go. Try the new 3M Bright Screen Privacy Filter and stop worrying about confidential or personal information escaping your computer screen. Everything that appears on your screen is for your eyes only. Visit 3mscreens.com slash brighter to get your new 3M Bright Screen Privacy Filter today and work like no one is watching. 3mscreens.com slash brighter. The International Rescue Committee works in more than 40 countries to serve people whose lives have been upended by conflict and disaster. Over 110 million people are displaced around the world and the IRC urgently needs your help to meet this unprecedented need. The IRC aims to respond within 72 hours after an emergency strikes and they stay as long as they are needed. Some of the IRC's most important work is addressing the inequalities facing women and girls, ensuring safety from harm, improving health outcomes, increasing access to education, improving economic well-being, and ensuring women and girls have the power to influence decisions that affect their lives. Generous people around the world give to the IRC to help families affected by humanitarian crises with emergency supplies. Your generous donation will give the IRC steady, reliable support, allowing them to continue their ongoing humanitarian efforts even as they respond to emergencies. Donate today by visiting rescue.org slash rebuild. Donate now and help refugee families in need. Squarespace is the all-in-one platform for building your brand and growing your business online. Stand out with a beautiful website, engage with your audience, and sell anything. Your products, content you create, and even your time. With member areas, you can unlock a new revenue stream for your business and free up time in your schedule by selling access to gated content like videos, online courses, or newsletters. This summer, why not share your adventures with your followers in a newsletter or maybe make some fun video compilations of all your summer escapades? Now you can create pro-level videos effortlessly in the Squarespace Video Studio app. You can easily display posts from your social profiles on your website or share your new blogs or videos on social media. Automatically push website content to your favorite channels so your followers can share it too. Plus, use Squarespace's insights to grow your business. Learn where your site visits and sales are coming from and analyze which channels are most effective. Go to squarespace.com slash invisible for a free trial and when you're ready to launch, use the offer code invisible to save 10% off your first purchase of a website or domain. Chances are you're listening to 99% invisible on your phone, probably while you're on the go. Think of all that you do on your phone the moment you leave your front door, whether it's looking up directions, scrolling social media, or listening to your favorite podcast. It requires an amazing network. That's why you should switch to T-Mobile. T-Mobile covers more highway miles with 5G than anyone else and helps keep you connected with 5G from the driveway to the highway and the miles in between. Because your phone should just work where you are, it's your lifeline to pretty much everything you didn't bring with you. So next time you head out, whether you're taking a trip or going to work or just running errands, remember, T-Mobile has got you covered. Find out more at T-Mobile dot com slash network and switch to the network that covers more highway miles with 5G than anyone else. There's not available in some areas. See 5G details at T-Mobile dot com. We are back with producer Vivian Le. Vivian, you may now address the court.
SPEAKER_12: Thank you. Thank you. Your honor. Pleased to be here.
SPEAKER_02: What do you have for us?
SPEAKER_12: Yeah. So I wanted to talk a little bit more with you about the Supreme Court and its relationship to television coverage in particular, which has been banned for decades. Yeah.
SPEAKER_02: We touched a little bit on this in the main story.
SPEAKER_12: Yes. Yeah. So the Supreme Court actually it does record audio of the arguments themselves, which has been publicly accessible for a while. People don't know. You should check it out. So cool. Yeah. But the court has always been like really skittish about live coverage or television coverage in particular. Yeah.
SPEAKER_02: I mean, I mean, people have been pushing for decades to have like a version of C-SPAN for the Supreme Court because it's just so different to experience these arguments in real time versus like days later in an audio recording. It's just so different.
SPEAKER_12: Right. So like a few years ago, the Supreme Court did allow for the first time live audio streaming of oral arguments. And it was for, you know, exactly the same reason why we are currently recording this coda in separate rooms in different cities, which is COVID. Yeah. Yes. Because of COVID, the justices could not meet in person. So they began allowing public access to these teleconference calls that were happening in real time, which leads me to the actual reason why I brought here.
SPEAKER_02: I know where this is going. I know where this is going. I know you know where this is going.
SPEAKER_12: OK. But for people who haven't caught on yet, on Wednesday, May 6th, 2020, something happened and it was historic. And I'm going to play the clip right now.
SPEAKER_11: FCC has said is that when the subject matter of the call ranges to the topics, then the call is transformed. And it's called it what's been allowed.
SPEAKER_02: Yes, the Supreme Court toilet flush. Toilet flush.
SPEAKER_12: So for listeners who have been living under a rock smack dab in the middle of oral arguments, someone on the Supreme Court, maybe not on the Supreme Court, but on the Supreme Court phone call, forgot to hit mute and a very audible toilet flush rang out for the entire world to hear.
SPEAKER_02: This is like my worst nightmare. It is a complete nightmare and a nightmare for the Supreme Court justices on the call,
SPEAKER_12: because of course, the next logical question after like, was that a toilet flush? Is who flushed the toilet? Yeah.
SPEAKER_02: So I never actually found out who that was. Did anyone ever find out who the phantom toilet flusher was?
SPEAKER_12: OK. So there is an incredible Slate article by Ashley Feinberg, who is like the best detective in the world. She's the one who found out that Mitt Romney was tweeting under the pseudonym Pierre Delecto. Right, right, right. So she's very skilled. She did probably the most in-depth investigative reporting on the subject. And I really, really wanted to share some of her findings. OK.
SPEAKER_02: Well, I'm a little nervous where this is going to go, but let's go for it.
SPEAKER_12: OK. So although it is not impossible, it is very unlikely that it was either Roman Martinez, who was the lawyer who you hear actively speaking on mic at the time. And it was probably not Justice Kagan, because this was during her round of questioning. So she was also just on mic. OK.
SPEAKER_02: So it would be a huge power move if she was doing it. Totally. Yep.
SPEAKER_12: From the toilet. Yeah. And so it also probably wasn't Ruth Bader Ginsburg, because Ginsburg at the time was actually in the hospital. She took this call from the hospital. And every time it was her turn to speak, you could kind of hear this background noise. And that wasn't present during the time of the flush. But the main person of interest is Justice Breyer. OK.
SPEAKER_02: So why Justice Breyer?
SPEAKER_12: It is important to note that Justice Breyer did not confess to being the toilet flusher, nor do we have definitive proof that it was him. Noted. But Feinberg cites a number of things here. For one, Breyer had a number of technical difficulties during the call. Like you could hear audible clinking in the background during some of the moments that he was on mic. So it kind of indicated that, you know, he wasn't too worried about multitasking during oral arguments. Yeah.
SPEAKER_02: Yeah. Or wasn't familiar with the muting and unmuting that we've gotten so adept at in our years of Zooming.
SPEAKER_12: Yes, exactly. And that brings me to the most damning piece of evidence that comes out of this investigation, which is the way in which some of the justices signed off at the ends of their rounds of questioning.
SPEAKER_02: What do you mean by that?
SPEAKER_12: When some of the justices were finished talking, there was a very subtle audible dropout where you could tell that they had hit mute. So I'm going to play for you a clip from Clarence Thomas as he's finishing his questioning. And you're going to have to listen like super closely to the ambient noise in between Thomas's voice and the voice that comes after it.
SPEAKER_10: And even someone knocking on their front door. Well, I think so you could hear a little bit of a drop out there.
SPEAKER_12: And then I'm also going to play Sotomayor too, so you could get a sense of like what the, what Sotomayor did too.
SPEAKER_04: The remedy, shouldn't we let the circuit below decide that question?
SPEAKER_11: Oh, your honor, two points on that.
SPEAKER_12: So right there, you hear that right there? Yeah. Yeah. So Thomas has audio, but Feinberg actually analyzed a visual waveform of these three justices back to back, which is right there in the, I just zoomed you picture, Roman, if you could tell me what you see.
SPEAKER_02: Yeah. So it has the Thomas waveform, which has, you know, normal audio waves that you see. And then when it goes to mute, when they're done talking, it goes to nothing. Like there's no sound. And then Sotomayor is the same thing. She talks, she signs off, it goes to mute. But Breyer has like the little peaks of talking. And then when he's done talking, you still have those little ambient, like little peaks that are low as if he didn't know, or in this case, he did not mute. Yes, exactly.
SPEAKER_12: So he is the lead suspect. Again, no definitive proof, but I think that's the closest that we could get to an answer for now until he confesses on his death. But you know, this toilet thing is so funny because the Supreme Court goes to such great lengths to like project this air of grandeur and dignity. Like they wear these black robes and they sit on this elevated bench of mahogany. And you know, the guy comes down and he goes, he does the O.E.A. chant thing and they have these little, these cute little quill pens next to them. Right.
SPEAKER_02: Right. But when you like, you know, listen to their arguments and even the written arguments that they're just human beings and they sometimes make really bad arguments and make dumb decisions and they also use toilets and they have I.T. Zoom issues. Yes.
SPEAKER_12: Yeah. There's there's a lot of we have a lot of good reasons to question the dignity of the Supreme Court, but everybody poops.
SPEAKER_02: Well, I'm so glad you could bring this important issue to to our audience. Yeah, so, Roman, for your sake, I left out a lot of hilarious details from Ashley Feinberg's
SPEAKER_12: toilet flush investigation. So if listeners want to check that out for themselves, we'll have a link to that on our website.
SPEAKER_02: This is great. Well, thank you so much.
SPEAKER_12: I appreciate it.
SPEAKER_03: Thank you. Ninety nine percent invisible was produced this week by Vivian Lay and edited by Kelly
SPEAKER_02: Prine. Original music by Swan Real. Sound mix by Martine Gonzalez. Jelani Hall is our senior editor. Kurt Kohlstedt is our digital director. The rest of the team includes Chris Berube, Jason De Leon, Emmett Fitzgerald, Christopher Johnson, Loshma Dawn, Jacob Maldonado Medina, Joe Rosenberg and me, Roman Mars. The 99 percent visible logo was created by Stefan Lawrence. Special thanks this week to Hedy Neshari, whose book Crime and Justice in the Age of Court TV was really helpful to this story and to Rachel Ward for additional editorial support. Also, thanks to Jared Hernandez, who created two amazing original courtroom sketches for this episode. Although I have some objection to how he depicted my nose. It is maybe that big, but it is not that round. But anyway, thank you, Jared. I guess you can check those out at our website. We are part of the Stitcher and Sirius XM podcast family now headquartered six blocks north in the Pandora building in beautiful uptown Oakland, California. You can find the show and join discussions about the show on Facebook. You can tweet at me at Roman Mars and the show at 99 Pi Org on Instagram, Reddit and TikTok too. You can find links to other Stitcher shows I love, as well as every past episode of 99 Pi at 99pi.org.
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