Roman Mars [00:00:02] Reboot your credit card with Apple Card, the credit card created by Apple. It gives you unlimited daily cashback that you can now choose to grow in a high yield savings account that’s built right into the Wallet app. Apply for Apple Card now in the wallet app on iPhone and start growing your daily cash with savings today. Apple Card subject to credit approval. Savings is available to Apple Card owners subject to eligibility requirements. Savings accounts provided by Goldman Sachs Bank USA. Member FDIC. Terms apply. With thousands of new podcasts being started every day, it seems, it’s more important than ever to make sure you stand out from the crowd. And that goes for any business. Squarespace helps you create an all-in-one platform to grow your business online through an engaging and aesthetically pleasing website, where you can sell anything. Squarespace lets you use customizable galleries to display images in unique ways. You can sell your products in an online store. You’ll find eCommerce templates, inventory management, and a simple checkout process. And it’s easy to get started with custom templates. Head to squarespace.com/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. This is 99% Invisible. I’m Roman Mars. 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. 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 mug shot 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.
Vivian Le [00:02:20] 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.
Roman Mars [00:02:30] Producer, Vivian Le.
Vivian Le [00:02:32] 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.
Mona Shafer Edwards [00:03:10] I was in love with it from the very beginning. It’s always different. It’s emotional. I carry around stories with me in my head for months and months.
Vivian Le [00:03:24] This is Mona Shafer Edwards, a courtroom artist based in Los Angeles.
Mona Shafer Edwards [00:03:29] It’s very satisfying to see justice being done, to have the historical presence, and to watch history unfold. So, I have covered some of the most important trials in American history in the last 35, 40 years.
Vivian Le [00:03:50] She’s drawn a ton of big cases–Michael Jackson, The Night Stalker. Harvey Weinstein. I can imagine LA is…
Vivian Le (tape) [00:03:57] You get a lot of work.
Mona Shafer Edwards [00:04:00] Rife with disaster. Yes, I get a lot of work.
Vivian Le [00:04:04] But I think the most fascinating thing to me about courtroom illustration is that it still exists because you can’t really talk about courtroom illustration without addressing the elephant not in the room–photography.
Vivian Le (tape) [00:04:15] What can a really good courtroom illustrator do that a photographer can’t do specifically? Like, what’s your edge?
Mona Shafer Edwards [00:04:27] I can’t compete with photography. You know, I’m not going to justify what I do. I can’t compete with the camera.
Vivian Le [00:04:35] Next 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.
Roman Mars [00:04:53] 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.
Vivian Le [00:05:15] It’s a tension that came to a head for the first time in 1932.
Tom Doherty [00:05:21] We’ve always been big on crime in America, Vivian.
Vivian Le [00:05:25] This is Thomas Doherty, author of a book called Little Lindy is Kidnaped, which focuses entirely on the media coverage surrounding the kidnaping and grisly murder of the infant son of Charles Lindbergh.
Roman Mars [00:05:36] Lindbergh’s reputation has been tarnished because of his isolationist views and his political sympathies…
Vivian Le [00:05:43] Ahem. Nazi.
Roman Mars [00:05:44] But at the time, Lindbergh was one of the most well-known and most well-respected men in the country when tragedy struck.
Tom Doherty [00:05:52] On the night of March 1st, 1932, in their estate in Hopewell, New Jersey, someone comes into the second-floor nursery, climbs up on the ladder, goes into the baby’s nursery, and takes him away that night.
Newscaster #1 [00:06:07] Not a single bed is overlooked. Not a single suspicion unverified in the search for the most famous baby in the world–innocent, 20-month-old son of the Lone Eagle.
Tom Doherty [00:06:20] And the kidnaper leaves a note demanding $50,000 in ransom.
Roman Mars [00:06:25] Sadly, the Lindbergh son was never recovered alive. 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.
Tom Doherty [00:06:37] And then on January 2nd, 1935, the crime of the century gives way to the trial of the century.
Vivian Le [00:06:45] 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.
Tom Doherty [00:06:57] Oh, there’s a media scrum. Yeah.
Newscaster #2 [00:07:00] Look at this scene. A courtroom so packed that there’s not an inch of space available. While excited, chatter, and buzz fill the air.
Vivian Le [00:07:08] 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.
Tom Doherty [00:07:21] A still photographer had those old-fashioned light bulbs in their camera that give you the flash. And the reporter would, you know, take the bulb out of there, out of the light, and then toss it on the floor where it’d make a popping sound. So that could be quite intrusive.
Vivian Le [00:07:35] The judge was concerned about all the distraction photographers and camera reels would have. So, he strictly forbade any photography or motion picture captured during the course of the trial. Camera operators were only to capture the moments before court was in session and after.
Tom Doherty [00:07:49] The newsreels promise him–on their honor–that the newsreel camera they have in the balcony of the courtroom will only be turned on when people aren’t on the stand doing actual testimony.
Roman Mars [00:08:01] Believe it or not, they didn’t do that.
Tom Doherty [00:08:03] During the dramatic cross-examination between Bruno Richard Hauptmann, the accused kidnap 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 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.
Vivian Le [00:08:30] During this rapid cross-examination, Hauptmann admits to having lied to police on the stand.
David T. Wilentz [00:08:38] Did you lie to them, or did you tell the truth?
Bruno Richard Hauptmann [00:08:39] I said not the truth.
David T. Wilentz [00:08:40] You lied, didn’t you?
Bruno Richard Hauptmann [00:08:40] I did, yes.
David T. Wilentz [00:08:40] Yes.
Roman Mars [00:08:45] Shortly after Hauptmann’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.
Tom Doherty [00:08:58] The public saw it. Everybody in America is 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 Hauptmann.” A rock goes through the window of the courthouse. But the jury returns its verdict.
Roman Mars [00:09:31] Bruno Hauptmann was found guilty and was sentenced to death by electric chair.
Vivian Le [00:09:35] 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 believed that the presence of photographers, newsreels, and other journalists made a complete mockery of the court.
Tom Doherty [00:09:54] 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, you know, a solemn process, a democratic process, one in which we, I think, genuinely want to see justice done.
Vivian Le [00:10:22] 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?
Roman Mars [00:10:38] So in direct response to the Hauptmann trial, the American Bar Association adopted something called Canon 35.
Vivian Le [00:10:44] 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.
Roman Mars [00:11:00] In 1946, the U.S. government went even further and expressly banned all cameras from federal courts.
Tom Doherty [00:11:06] And so starving sketch artists are the people that really, I think, benefit from this–from Canon 35.
Vivian Le [00:11:13] 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.
Roman Mars [00:11:34] 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.
Vivian Le [00:11:45] One of the first people to sketch a trial for television was a man named Howard Brodie. Brodie 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. Brodie’s work turned courtroom illustration into a real job and broke open the profession for a number of other aspiring artists.
Pat Lopez [00:12:11] 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.
Vivian Le [00:12:22] This is Pat Lopez. She’s an artist based in New Mexico. After Pat saw those Howard Brodie drawings on CBS, she called up a producer at her local news station and scored a meeting.
Pat Lopez [00:12:33] So I ran to the station. He had me draw the noon anchor as he was giving the news right in front of him. And then he said, “And you walked in off the street?” I said, “Yes, sir,” because they 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.
Vivian Le [00:12:55] Pat has 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.
Pat Lopez [00:13:11] Everyone knows when the camera is in the courtroom. But you’ve got someone like me sitting in the front row, quietly sketching–no one really knows what I’m doing. They can’t see what I’m doing.
Roman Mars [00:13:22] 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.
Pat Lopez [00:13:38] This is what the judges wanted was some kind of protection for the people in court to protect justice. I think that they’ve looked at courtroom art as the safest way to do this.
Vivian Le [00:13:49] 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.
Mona Shafer Edwards [00:14:01] 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.
Vivian Le [00:14:17] This is artist Mona Shafer Edwards again.
Mona Shafer Edwards [00:14:19] I know what I need to do. We wait for that moment. I’m sure every illustrator will tell you the same thing. You wait for the aha moment. I mean, it’s, you know, somebody collapsing or screaming or gesturing or jumping over a table to try and strangle someone. I mean, that’s like gold.
Vivian Le [00:14:39] 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 Roald Dahl book.
Mona Shafer Edwards [00:15:07] There was a moment in federal court–Whitey Bulger, who was a bad guy. And he saw me sketching him. Now, 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.
Vivian Le [00:15:44] Pat Lopez told me that she’s also seen a lot of difficult things throughout the course of her career.
Pat Lopez [00:15:49] The energy in the courtroom was really, really dark at times. The people coming into the court had so much grief and an 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.
Vivian Le [00:16:11] 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.
Roman Mars [00:16:28] 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.
Jane Kirtley [00:16:43] 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.
Vivian Le [00:16:52] This is Jane Kirtley, Silha 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.
Jane Kirtley [00:17:02] To me, the fundamental question is: How can the public trust what’s going on in the courtroom 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.
Vivian Le [00:17:30] 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 discreet courtroom artists. Far from being intimidated, witnesses and lawyers would barely notice the cameras were there.
Roman Mars [00:18:06] 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.
Vivian Le [00:18:16] 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.
Roman Mars [00:18:30] 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.
Court TV [00:18:41] The people of the State of California versus Elisabeth Anne Broderick. Order of Business this morning, ladies and gentlemen, is we’ll start with the opening statements by the lawyers…
Roman Mars [00:18:49] Jane Kirtley 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.
Jane Kirtley [00:18:59] 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 the 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.
Vivian Le [00:19:24] 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?
Mona Shafer Edwards [00:19:46] I think all of the courtroom artists thought that was going to be the end of courtroom art.
Vivian Le [00:19:52] Courtroom artist Mona Shafer Edwards again. She actually started making backup plans for her career around this time.
Mona Shafer Edwards [00:19:59] 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.”
Roman Mars [00:20:09] And then the O. J. Simpson case happened.
Newscaster #3 [00:20:13] 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…
Roman Mars [00:20:20] Beginning in 1995, the city of Los Angeles began the grueling eight-and-a-half-month criminal trial of O. J. Simpson.
Vivian Le [00:20:27] If you were alive in 1995, your lasting memory of this trial was probably that it devolved into a total joke.
Newscaster #4 [00:20:33] They have come from across the globe, bringing their satellite trucks pulling miles of cable.
Interviewee [00:20:39] I found 49 cameramen, 25 anchors, 20 producers I could see, but a lot of them were inside a truck.
Vivian Le [00:20:45] The presiding judge, Judge Lance Ito, seemed absolutely incapable of managing courtroom antics.
Johnnie Cochran [00:20:51] Remember these words… If it doesn’t fit, you must acquit.
Vivian Le [00:20:56] And most observers blame the bloated media presence.
Mona Shafer Edwards [00:20:59] It was totally a circus–a complete circus.
Vivian Le [00:21:04] Although cameras were famously allowed inside the courtroom for this trial, Mona Shafer Edwards was also hired to sketch both the preliminary hearing and the criminal trial alongside other media. She says that the clownery was palpable.
Mona Shafer Edwards [00:21:18] 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 Johnnie Cochran–who was a lovely man–he came into court every day, and he would adjust the lectern right where the camera angle was. And then there are the witnesses–they were dressed up. They had hair done. It absolutely colors a witness’ testimony to have a camera on them.
Vivian Le [00:21:54] 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.
Roman Mars [00:22:13] Comedians made a mockery out of this double murder trial for eight straight months. Jay Leno even featured a chorus line of Judge Ito 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.
Jane Kirtley [00:22:34] 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.”
Vivian Le [00:22:48] So once again, the snake rounded back on its own tail as judges across the nation unceremoniously banished recording technology from their courtrooms.
Jane Kirtley [00:22:57] 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.
Roman Mars [00:23:12] Accordingly, this circularity granted a stay of execution for sketch artists.
Pat Lopez [00:23:17] Of course, you know, crime never stops, right? And we started having these amazing, just really horrific crimes.
Vivian Le [00:23:25] Courtroom artist Pat Lopez again. She says that the post O. J. years were actually a gold rush era for courtroom artists like her.
Pat Lopez [00:23:33] 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.
Roman Mars [00:24:01] 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 discreet 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.
Vivian Le [00:24:23] 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.
Roman Mars [00:24:41] In person, Vivian sounds more like Jennifer Coolidge.
Vivian Le [00:24:44] 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.
Newscaster #5 [00:25:04] We’re breaking into your regular programing 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.
Roman Mars [00:25:15] In March of 2021, the trial of Derek Chauvin, the police officer who murdered George Floyd, began in Minneapolis, Minnesota.
Vivian Le [00:25:24] At the time of the trial, Minnesota actually had very stringent rules regarding electronic media in criminal courtrooms. Kirtley 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.
Jane Kirtley [00:25:45] And practically that meant that there were never cameras in trials.
Roman Mars [00:25:50] 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 the Minnesota precedent. Judge Cahill decided that the entirety of the trial needed to stream live for the world to see.
Jane Kirtley [00:26:09] 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.
Roman Mars [00:26:25] 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.
Vivian Le [00:26:39] But in a break with history, the broadcast of the trial went off nearly hitch free.
Roman Mars [00:26:44] 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.
Jane Kirtley [00:26:56] I think this went as well or better as could ever have been expected under the circumstances.
Roman Mars [00:27:04] 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.
Vivian Le [00:27:22] 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.
Mona Shafer Edwards [00:27:54] I didn’t see a future in it 20 years ago either. I kept thinking, “This is the last year. This is the last year.” But it keeps happening.
Vivian Le [00:28:02] Courtroom artist Mona Shafer Edwards again.
Mona Shafer Edwards [00:28:05] I don’t know how it’s going to go. But it’s been great, and I love it. And as long as I can do it, then I would like to just keep on doing it.
Roman Mars [00:28:17] 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.
Vivian Le [00:28:35] Jane Kirtley acknowledges that part of the reason why the livestream 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 the system if you can’t see it’s broken.
Roman Mars [00:29:13] Coming up, Vivian helps me get to the bottom of a Supreme Court mystery…after this. If you have a family, you know how much your loved ones depend on you. A good life insurance plan can give you peace of mind that if something happens to you, your family will have a safety net to cover mortgage payments, college costs, and other expenses, so they can get back on their feet and focus on what’s most important, which is putting you in the ground and finding a new dad. Policygenius was built to modernize the life insurance industry. Their technology makes it easy to compare life insurance quotes from America’s top insurers in just a few clicks to find your lowest price. With Policygenius, you can find life insurance policies that start at just $25 a month for $1 million of coverage. Some options offer coverage in as little as a week and avoid unnecessary medical exams. Policygenius works for you, not the insurance companies. That means they don’t have an incentive to recommend one insurer over another, so you can trust their guidance. Your loved ones deserve a financial safety net. You deserve a smarter way to find and buy it. Head to policygenius.com and click the link in the description to get your free life insurance quotes and see how much you could save. That’s policygenius.com. If thinking about salsa in a variety of delicious flavors and heat levels makes your mouth water, you need to check out Green Mountain Gringo. And make sure you turn the jar around to see its all-natural ingredients. With a Medium Salsa, you get hearty chunks of tomatoes, tomatillos, peppers, and onions in every scoop. Some like it hot. And for those people like me, Green Mountain Gringo does not disappoint. My favorite is the Hot Salsa, which brings flavorful heat to every meal with each bite, containing jalapenos, serrano peppers, and other savory herbs. Green Mountain Gringo even has their own tortilla strips made with stone ground, all natural, yellow corn flour. As far as I’m concerned, the secret to life is to have the ingredients to make nachos in your home at all times. Plus, they have a hot sauce with a tangy spicy flavor that enhances the simplest of meals. It’s perfect for eggs. I like hot sauce on eggs. Visit greenmountaingringo.com and start shopping. Use the store locator to find Green Mountain Gringo products. Get inspiration for recipes and purchase products using promo code “podcast23” for 23% off. That’s promo code “podcast23.” This show is sponsored by BetterHelp. It’s pretty easy to get caught up doing everything for others and forget that you need to support yourself sometimes, too. Therapy can help you clarify your values and find more balance in your life, so you can keep being a rock star for others without forgetting yourself in the process. Therapy is really helpful for learning positive coping skills and learning how to set boundaries. It empowers you to be the best version of yourself. It isn’t just for people who’ve experienced trauma. Everyone can benefit from it. If you’re thinking of starting therapy, give BetterHelp a try. It’s entirely online, designed to be convenient, flexible, and suited to your schedule. Just fill out a brief questionnaire to get matched with a licensed therapist, and switch therapists at any time at no additional charge. Find more balance with BetterHelp. Visit betterhelp.com/invisible today to get 10% off your first month. That’s betterhelp.com/invisible. With thousands of new podcasts being started every day, it seems, it’s more important than ever to make sure you stand out from the crowd. And that goes for any business, really, whether you’re selling custom dollhouses, marketing your graphic design company, or even producing a podcast. Squarespace helps you create an all-in-one platform to grow your business online through an engaging and aesthetically pleasing website where you can sell anything. Squarespace lets you use customizable galleries to display images in unique ways, like your model home blueprints. 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 on the architecture of Frank Lloyd Wright. Or newsletters. Squarespace email campaigns allows you to collect email subscribers and convert them into loyal customers. You can also display posts from your social profiles on your website. Head to squarespace.com/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. We are back with producer Vivian Le. Vivian, you may now address the court.
Vivian Le [00:33:48] Thank you. Thank you, Your Honor. Pleased to be here.
Roman Mars [00:33:52] What do you have for us?
Vivian Le [00:33:53] Yes. 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.
Roman Mars [00:34:02] Yeah, we touched a little bit on this in the main story.
Vivian Le [00:34:05] So the Supreme Court–actually, it does record audio of the arguments themselves, which has been publicly accessible for a while. If people don’t know, you should check it out.
Roman Mars [00:34:15] That’s so cool.
Vivian Le [00:34:15] Yeah, but the Court has always been, like, really skittish about live coverage or television coverage in particular.
Roman Mars [00:34:22] Yeah, I mean, people have been pushing for decades to have a version of C-SPAN for the Supreme Court because it’s just so different to experience these arguments in real time versus days later in an audio recording. It’s just so different.
Vivian Le [00:34:34] Right. So, a few years ago, the Supreme Court did allow for the first-time live audio streaming of oral arguments. And it was for exactly the same reason why we are currently recording this coda in separate rooms in different cities, which is…
Roman Mars [00:34:50] COVID.
Vivian Le [00:34:50] 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 you here.
Roman Mars [00:35:03] I know where this is going.
Vivian Le [00:35:06] I know you know where this is going. Okay. 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.
Roman Martinez [00:35:17] When the subject matter of call ranges to such topics, then the call is transformed. And it’s a call that would’ve been allowed…
Roman Mars [00:35:28] Yes, the Supreme Court toilet flush.
Vivian Le [00:35:31] The toilet flush. 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.
Roman Mars [00:35:47] This is, like, my worst nightmare.
Vivian Le [00:35:50] It is a complete nightmare and a nightmare for the Supreme Court Justices on the call because, of course, the next logical question after, like, “Was that a toilet flush?” is, “Who flushed the toilet?”
Roman Mars [00:36:02] Yeah. So, I never actually found out who that was. Did anyone ever find out who the phantom toilet flusher was?
Vivian Le [00:36:09] Okay, 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.
Roman Mars [00:36:22] Oh, right, right, right.
Vivian Le [00:36:22] She’s very skilled. She did probably the most in-depth investigative reporting on this subject. And I really, really wanted to share some of her findings.
Roman Mars [00:36:31] Okay. Well, I’m a little nervous of where this is going to go, but let’s go for it.
Vivian Le [00:36:35] Okay. 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.
Roman Mars [00:36:52] Okay. That’d be a huge power move if so.
Vivian Le [00:36:55] Totally. 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.
Roman Mars [00:37:15] Okay, so why Justice Breyer?
Vivian Le [00:37:16] 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.
Roman Mars [00:37:24] Noted.
Vivian Le [00:37:26] But Feinberg cites a number of things here. For one, Breyer had a number of technical difficulties during the call. You could hear audible clinking in the background doing 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.
Roman Mars [00:37:44] Yeah. Or wasn’t familiar with the muting and unmuting that we’ve gotten so adept at in our years of Zooming.
Vivian Le [00:37:50] 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.
Roman Mars [00:38:02] What do you mean by that?
Vivian Le [00:38:03] When some of the Justices were finished talking, there was a very subtle, audible drop out 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 super closely to the ambient noise in between Thomas’ voice and the voice that comes after it.
Clarence Thomas [00:38:22] And even someone knocking on their front door…
Vivian Le [00:38:27] You could hear a little bit of a drop out there. And then I’m also going to play Sotomayor to you so you can get a sense of what Sotomayor did, too.
Sonia Sotomayor [00:38:34] Shouldn’t we let the circuit below decide that question?
Vivian Le [00:38:43] So, right there. You hear that right there? And it’s hard to tell in 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. Tell me what you see.
Roman Mars [00:39:01] 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. There’s no sound. And then Sotomayor’s does the same thing. She talks, she signs off, it goes to mute. But Breyer has little peaks of talking. And then when he’s done talking, you still have those little, ambient peaks as if he didn’t know or in this case, he did not mute.
Vivian Le [00:39:31] Yes, exactly. 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 deathbed. 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, they wear these black robes and they sit on this elevated bench of mahogany and, you know, the guy comes down–he does the “oyez” chanting–and they have these cute, little quill pens next to them.
Roman Mars [00:40:04] Right. But when you, you know, listen to their arguments and even the written arguments, they’re just human beings, and they sometimes make really bad arguments and make dumb decisions. And they also use toilets, and they have IT Zoom issues.
Vivian Le [00:40:18] Yes. Yeah, we have a lot of good reasons to question the dignity of the Supreme Court. But everybody poops.
Roman Mars [00:40:30] Well, I’m so glad you could bring this important issue to our audience.
Vivian Le [00:40:37] Yeah. So, Roman, for your sake, I left out a lot of hilarious details from Ashley Feinberg’s toilet flush investigation. So, if listeners want to check that out for themselves, we’ll have a link to that on our website.
Roman Mars [00:40:48] This is great. Well, thank you so much. I appreciate it.
Vivian Le [00:40:50] Thank you.
Roman Mars [00:40:54] 99% Invisible was produced this week by Vivian Le and edited by Kelly Prime. Original music by Swan Real. Sound mix by Martín Gonzalez. Delaney Hall is our Senior Editor. Kurt Kohlstedt is our digital director. The rest of the team includes Chris Berube, Jayson De Leon, Emmett FitzGerald, Christopher Johnson, Lasha Madan, Jeyca Maldonado Medina, Joe Rosenberg, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. Special thanks this week to Hedi Nasheri whose book Crime and Justice in the Age of Court TV was really helpful to this story, to Rachel Ward for additional editorial support, and 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 on our website. We are part of the Stitcher and SiriusXM 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 me @romanmars and the show @99piorg. We’re on Instagram, Reddit, and TikTok too. You can find links to other Stitcher shows I love as well as every past episode of 99pi at 99pi.org.
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