Ketanji Brown Jackson Makes History | Crooked Media
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February 28, 2022
What A Day
Ketanji Brown Jackson Makes History

In This Episode

  • Ukrainian officials will reportedly talk with Russia as early as today on the border of Ukraine and Belarus. Matt Duss, Senator Bernie Sanders’ foreign policy advisor, joins us to discuss today’s expected talks and what he thinks is on the negotiation table for both sides.
  • President Joe Biden named Ketanji Brown Jackson his nominee for the Supreme Court to replace the retiring Justice Stephen Breyer. If confirmed, she would be the first Black woman to serve on the Supreme Court.
  • In headlines: The Supreme Court will hear one of the most important environmental cases today, thousands of African students in Ukraine have found themselves trapped in the country amid Russia’s attacks, and new studies confirm that COVID-19 originated at a live animal market in Wuhan, China.
  • And we talk with Chesa Boudin, District Attorney of San Francisco, about his decision to drop the case against a woman who was the victim of a sexual assault, but whose DNA from a rape kit was used by the SF Police Department to link her to a different crime.


Show Notes:


  • USA Today: “Rape survivors, child victims, consensual sex partners: San Francisco police have used DNA from all of them for 7 years” –


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Tre’vell Anderson: It’s Monday, February 28th. I’m Tre’vell Anderson.


Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, giving you 20 minutes of information that will help you spend 40 minutes less reading news on your phone.


Tre’vell Anderson: Yes, that’s our best offer. If you can make it to 50 minutes, that’s good for you, but we’re not promising that.


Josie Duffy Rice: Stick around, though, and after the show, we’ll tell you how to put your phone in the trash.


Tre’vell Anderson: It’s very easy.


Josie Duffy Rice: On today’s show, we’ll tell you what you need to know about Biden’s Supreme Court nominee, Ketanji Brown Jackson. Plus, a conversation with San Francisco’s D.A. Chesa Boudin.


Tre’vell Anderson: Yes, but first, let’s give you an update on Russia’s invasion of Ukraine. As we record this on Sunday night, Ukrainian officials will reportedly talk with Russia as early as today on the border of Ukraine and Belarus. We’ll hear from a foreign policy expert in a moment to help us understand what to watch for, but also in an alarming move yesterday, Vladimir Putin put Russia’s nuclear forces on alert, even though Russia faces no nuclear threat from Ukraine. On ABC’s This Week, White House Press Secretary Jen Psaki said this yesterday:


[clip of Jen Psaki] This is really a pattern that we’ve seen from President Putin through the course of this conflict, which is manufacturing threats that don’t exist in order to justify further aggression.


Josie Duffy Rice: Great. That’s what I want to hear from a country that has nuclear weapons. So Tre’vell, there is continued fighting throughout the weekend. Can you walk us through what has been going on the ground?


Tre’vell Anderson: Yes, so the U.N. says at least 64 civilians in Ukraine have been killed as of Sunday. However, Russia’s advance has seemingly stalled so far, its forces have failed to capture the cities of Kiev and Kharkiv. It’s partly because Ukraine’s armed forces and volunteers have been fighting back so fiercely, but we should also note that they would be overpowered if Russia fully deployed its bigger military force and arsenal. Meanwhile, in a historic move, the EU announced it will buy and deliver weapons and other equipment to Ukraine. The EU also banned Russian aircrafts from entering its airspace. So there’s a lot going on Josie. To get a better handle of it. I spoke earlier to Matt Duss, Senator Bernie Sanders’s foreign policy adviser. I began by asking him about today’s expected talks and what he thinks is on the negotiation table for both sides.


Matt Duss: Well, I mean, for what the Ukrainians want, it’s quite clear. I mean, they want the invasion to stop and they want Western troops to withdraw. It’s hard to say what’s on the table right now. The demands that Vladimir Putin has been putting out are just obviously nonstarters, explaining his view that Ukraine is actually not a real country, it’s just a part of Russia, and Ukraine is not a separate nation. And obviously, Ukrainians who live in Ukraine, which is a separate country, are not crazy about this idea so they’re not going to accept that. Zelensky made clear that he’s not going to join this delegation, which is probably wise. He was going to stay in Kiev. As many have probably seen, his amazing videos that he continues put out to boost morale and to show defiance. But still, the key question, as you asked, was what is Russia willing to put on the table? And given the maximalist demands that Putin has been putting out there, I really don’t know.


Tre’vell Anderson: Yeah. Also yesterday, Ukraine filed a suit against Russia at the UN’s highest court, asking the judges to order an immediate halt to the Russian military operation. Can you walk our listeners through what that actually means?


Matt Duss: Well, the International Court of Justice is the essentially the judicial body of the United Nations, and previously Ukraine had asked for an advisory ruling relating to Russia’s 2014 invasion, which was obviously a much more subtle invasion. The ICJ has difficulty acting without support of the U.N. Security Council, and obviously Russia is a permanent member of the U.N. Security Council with a veto, but still, it can act with the support of the broader General Assembly. So that is one path to take. But I think stepping back here in terms of what the actual outcome or what role the ICJ could play, I think part of the strategy here from Zelensky is to just keep the onus and the attention on Putin as the perpetrator of this invasion, because Putin would like nothing more than to kind of muddy the waters and say, Well, I say there was genocide going on—and this, in fact, is specifically one of the charges that Zelensky brought is that Putin used false claims of genocide to justify, to create a legal pretext for the invasion, which itself Zelensky was, you know, implying should be treated as a crime.


Tre’vell Anderson: And also yesterday, Putin placed his nuclear deterrent forces, which include nuclear arms, on alert as well. What’s been the reaction by the U.S. and others to that particular development?


Matt Duss: Well, I think the reaction on the part of everyone, and I include myself here is just this really makes clear what we are talking about here. I mean, no one should forget that we are talking about a nuclear armed state, the largest nuclear armed state with the most nuclear weapons in the world. The U.S. being second, of course. But you know, I think you saw some comments from White House spokesperson Jen Psaki, and the general response is this is Putin essentially just trying to threaten the world again.


Tre’vell Anderson: Yeah, and turning us to how this invasion has progressed on the ground so far, as we record this a senior U.S. defense official said Russian forces seem to have slowed their push into Ukraine. What does that tell you about their strength, and in particular, I think, the people of Ukraine’s ability to fight back.


Matt Duss: I think, first of all, it’s hard to know what to think. It’s still relatively very early in this. Sorry to say, given the destruction that we have already seen. I think it is safe to say that this has not gone as the Russians planned. This has not gone as Putin might have imagined, both in terms of the slow progress of the invasion, but also, I think the unity that we’ve seen on the part of the U.S. and European allies, the quick action in response in terms of sanctions and the provision even of weapons from European states. That is very unexpected. And of course, the resistance from Ukrainians themselves, who deserve, of course, the largest share of credit here, the leadership being shown from Zelensky. But given, you know, the size of the force arrayed around and now inside Ukraine, I would caution people not to seize on false hope. This is still early.


Tre’vell Anderson: Definitely. Now I also want to get your take on sort of the international community’s effort to help out Ukraine right now. What we know is that either through supplying assistance and aid to those in the country or by stifling Russia’s economy, the U.S., various allies, are taking action. Also on Saturday, the U.S. and others said they disconnect Russian banks from SWIFT, which is a messaging system used by banks around the world for financial transactions. What is your thoughts, your takes on these types of measures that have been taken place by the international community?


Matt Duss: Right. I think they’re all part of the broader approach of making clear to Putin that this is going to be much more costly than he imagined. I mean, every aspect of this is consistent with that. This was the message before the invasion. This was the message as these forces were massing on three sides of Ukraine. And I think some were surprised at how quickly, you know, even European countries and even, you know, the U.S. was a bit hesitant to commit to these SWIFT sanctions as recently as just a few days ago. But now, having gone forward with some of them—cutting off certain Russian banks, not all of them—I mean, they’re definitely leaving some space for further escalation. But still, these SWIFT sanctions makes Russian banks a really unattractive place for people to put their money. So this is the kind of thing that could really start to be felt in the broader Russian economy. It’s unclear how quickly, but is definitely a strong signal of unity, given that the U.S. and allies were able to move forward with this so quickly.


Tre’vell Anderson: And before I let you go, I want to ask you one last question. I feel like just looking at social media, I’ve seen a lot of folks here in the States express some sort of helplessness or unsure of whether or not there’s anything they can do to help or aid. From your vantage point, is there something that American civilians can do to feel like they can help those in Ukraine right now?


Matt Duss: One thing is just looking for refugee aid agencies, international humanitarian NGOs, many of them have been and will obviously be ramping up operations, some inside Ukraine, many in the countries neighboring Ukraine, like Poland and elsewhere, where a lot of people who are fleeing this conflict will go. These NGOs play a hugely important role in caring for these people. And you know, we’ve already seen a steady flow of refugees. We will see more, unfortunately.


Tre’vell Anderson: Josie that is my chat with Matt Duss, the foreign policy adviser for Senator Bernie Sanders. And as always, will keep bringing you all updates on Ukraine and what happens at those planned talks today.


Josie Duffy Rice: So of course, there’s so much going on, but we would be remiss if we didn’t acknowledge some very big news from Friday when Joe Biden named Ketanji Brown Jackson his nominee for the Supreme Court to replace the retiring Justice Stephen Breyer. Here she is speaking at last Friday’s announcement:.


[clip Judge Ketanji Brown Jackson] Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes.


Josie Duffy Rice: I disagree, Judge Jackson. I think you can fill his shoes. Currently, Judge Jackson is on the Court of Appeals for the D.C. Circuit. If confirmed, she would be the first Black woman to serve on the Supreme Court.


Tre’vell Anderson: Now, I know Biden was considering a few different nominees. How are you feeling about Judge Jackson as his choice?


Josie Duffy Rice: I, for one, am thrilled, and not just because she’s a Black woman. I’m happy about that, but I’d say I’m more bothered that she’s the first one than, like, super thrilled that one’s getting on the bench. But my excitement about her nomination is really because of a few reasons. So number one, there was some talk about Biden perhaps nominating a moderate or even a Republican to satisfy the interests of Republican senators. Judge Jackson is decidedly not a Republican, so I am relieved about that. And number two, Judge Jackson as a former public defender, which brings me a lot of joy, or as much as is possible in the middle of a possible nuclear threat.


Tre’vell Anderson: Now, tell us a little bit more about her being a public defender and why that’s so exciting to you.


Josie Duffy Rice: Yeah. So from 2005 to 2007, after she’d been out of law school for about 10 years, Judge Jackson became a federal public defender in D.C., where she handled cases before the same court of appeals where she now serves. And this has got a lot of negative attention, a fair amount mostly from the Republicans who want to make public defense seem like evil work that contributes to crime. But it’s actually a very, very exciting and necessary addition to our current Supreme Court. Our Constitution, it lays out protections for criminal defendants, right? Even our founding fathers recognized that when the state accuses you of a crime, you’re on the losing end of a majorly, majorly unbalanced power dynamic, right? It’s you versus the entire government. But still, public defenders are really underrepresented on the bench.


Tre’vell Anderson: Now, I can guess why that is, but Josie, please tell us why that is.


Josie Duffy Rice: Yes, I’d be happy to. So. Traditionally, if you wanted a career as a judge or in politics, you became a prosecutor, because for public defenders, it’s really easy to weaponize what your clients have been accused of against you. You know, for example, last year, when she was up for the Court of Appeals, Senator Ben Sasse asked her whether her public defense work contributed to gun violence. And Senator Tom Cotton asked about her representing clients at Guantanamo. You know, it’s just really easy to make it seem like you’ve also participated in the sort of crimes that your clients are accused of doing. But it’s extremely and incredibly important we have public defenders on the bench. I mean, they have a special insight into the power of the government. They have more insight into race and class in America than most lawyers, and they understand what it means to actually stand up for civilians against a government that is much, much, much more powerful than them. So you know what more can we hope for from a Supreme Court justice?


Tre’vell Anderson: Very much so. So how do you expect Judge Jackson to affect the court’s decisions if she is even confirmed?


Josie Duffy Rice: Yeah, I think that remains to be seen. And unfortunately, given the fact that the court is currently six-three in favor of conservatives, I think there is really little chance she’ll impact the ultimate decisions. But still, the minority voice matters in changing consensus and shifting public opinion and so I hope she’ll have the power to do that. It’s disappointing that such an incredible Justice may spend the first years, hopefully just the first years, of her Supreme Court career in such a position where she’ll often be in the minority on the most contentious and crucial decisions that come across the court. But ultimately, I think having her there is still really important and it’s still a major step forward. And hopefully one day the court won’t be so conservative and she’ll be able to guide its long-term trajectory. So we can only hope.


Tre’vell Anderson: Yes, yes.


Josie Duffy Rice: And that’s the latest for now.


Tre’vell Anderson: Now, let’s get to some headlines.


[sung] Headlines.


Tre’vell Anderson: Speaking of the Supreme Court, it will hear potentially one of the most important cases on the environment today. The case is West Virginia versus the Environmental Protection Agency, where the coal industry and Republican states are challenging the EPA’s authority to regulate power plant emissions. This all started back in 2015, when then President Obama announced a plan where states had to reduce greenhouse gases coming from the electricity sector. Obama’s plan never went into effect because of a series of lawsuits filed by Republicans and coal companies. And then Trump, of course, undid it all after he took office. President Biden has yet to jump-start again, so legal experts say it’s unusual for the justices to hear about what’s technically a hypothetical regulation right now. But EPA lawyers will undoubtedly be watching today’s hearing very closely because the agency reportedly hopes to propose new rules on power plants as soon as next month. And environmentalists are also keeping an eye on the case too, for fear that the court’s conservative majority could hamstring the EPA’s ability to broadly regulate power plants and their emissions in the future.


Josie Duffy Rice: As many people in Ukraine try to flee to neighboring countries, some are finding it harder to leave than others. Thousands of African students who moved to Ukraine to pursue higher education have now found themselves trapped there amid Russia’s attacks. Some African embassies have reportedly not provided any plans to safely evacuate their students, which leaves them to either take shelter in a safer neighboring city or find their own way out of Ukraine. Many have opted to travel to the country’s border with Poland in hopes of finding their way home from there, but they say that the busses and trains en route to the border aren’t allowing any Black people to board, including African-Ukrainian citizens. Even worse, some Black folks who have actually made it to the border have not been allowed to cross. Police are reportedly only allowing white Ukrainians through, leaving Black Ukrainians, Africans and other immigrants to wait at the border for days in below freezing temperatures. Racism never takes a break.


Tre’vell Anderson: Listen, they always find a way to be anti-Black, OK, honey.


Josie Duffy Rice: They will find a way every time, truly right on time.


Tre’vell Anderson: There’s new research into the pandemic’s origins that will surely put the question to bed and be greeted calmly and rationally by people on all sides of the political spectrum: two studies posted this weekend confirm the theory that COVID-19 originated at a live animal market in Wuhan, China, and not a virology lab. The reports say that the virus was likely present in the live animals sold there and was transferred over to workers or shoppers. To reach this finding, scientists performed genetic analysis on virus samples collected from the market and from the earliest infected humans, then connected these data to the specific area of the market where live animals were sold. The exact species of animal that was COVID patient zero remains unknown. While the studies have not been published in a scientific journal yet, many scientists agree that the reports present extremely strong evidence. Also in COVID news, the CDC released new masking guidelines last Friday for the U.S.—again. Officials now say that Americans can safely stop wearing masks indoors if they live in areas with low hospitalization rates. Right now, that describes 70% of the population. The new guidance does not apply to folks experiencing COVID symptoms or folks in high-risk areas, or to those riding public transportation or traveling through airports, train stations, and bus stations. But it’s ultimately still up to local governments to set rules for their residents.


Josie Duffy Rice: The Conservative Political Action Committee, or CPAC, was this weekend casting a dark shadow over the bastion of American culture that is Orlando, Florida. And right-wingers gather to discuss the news story on the tip of everyone’s tongue: cancel culture and how people tease you when you open an anti-vax middle school. The Russian invasion of Ukraine was not the main topic or really even a topic at all for much of the weekend at CPAC, and more traditional Republican issues like taxes and government spending weren’t either. Instead, speakers focused largely on grievances with what they perceive as a leftist cultural war against them, and what others perceive as white Christians being asked to empathize with people who aren’t white or aren’t Christian. With Donald Trump praising Vladimir Putin’s quote, “genius actions” to take over Ukraine last week, and at his Saturday speech at the conference, far-right conservatives have been left wondering how to address the war without coming off as too lib. Some CPAC speakers and avoided the topic entirely, others focus their anger on Biden instead of Putin. And Charlie Kirk of Turning Point USA said this:


[clip of Charlie Kirk] The US southern border matters a lot more than the Ukrainian border.


Tre’vell Anderson: Oh my God.


Josie Duffy Rice: He’s just pure idiot.


[clip of Charlie Kirk] In fact, I want every Republican leader that comes up on stage next couple days to call what’s happening on the southern border “invasion” because two million people waltzed into our country this last year,


Josie Duffy Rice: I just can’t, with like Charlie Kirk being even the reference point for any of us just shows how far we’ve fallen. Many people who claim to be victims of cancel culture took the stage over the weekend, but a logical puzzle the world’s greatest minds can’t solve, their public profiles have generally grown since being canceled. What about that? Leila Cetner, who you may remember as a founder of the Miami private school that told teachers they could not come in if they WERE vaccinated, noted that her school’s enrollment has grown and she’s had to create a waiting list since her story was reported. Trump hosted a VIP party at CPAC, and if you want to hear what it sounds like when you’re definitely not in a cult and haven’t surrendered your critical faculties to a charismatic leader, here’s one attendee reacting to some hamburgers under heat lamps that were served there:


[clip of Charlie Kirk] In classic Donald Trump fashion, he’s got McDonald’s. Oh, yeah. [unclear] McDonalds, save America. Yeah. Look at that. This is Donald Trump’s party and we got McDonald’s.


Tre’vell Anderson: I can’t. I can’t. I can’t, Josie.


Josie Duffy Rice: Is that the cult or the drinks? It’s hard to tell what he’s—I also have had a few drinks and been really excited about McDonald’s, so I almost like, don’t blame him. But I do. I do blame him for a lot of other things at the same time.


Tre’vell Anderson: Definitely putting a lot of blame their way.


Josie Duffy Rice: Yeah, yeah.


Tre’vell Anderson: And those are the headlines. We’ll be back after some ads.


[ad break]


Tre’vell Anderson: Hey, WAD squad, we’re going to wrap up today by going deeper on a story that was making headlines a few weeks ago. Josie, can you walk us through what happened?


Josie Duffy Rice: Yeah, so around Valentine’s Day, it was discovered that the San Francisco Police Department had used DNA collected from a sexual assault victim to link them to a crime years after she’d done a rape kit. So essentially, police used a woman’s rape kit DNA to link her to a felony property crime that was committed years later. Not cool.


Tre’vell Anderson: That sounds absurd. So how did this go over with the public when folks found out?


Josie Duffy Rice: People were outraged. The DNA of a rape victim who was brave enough to come forward and report her rape, which is rare as we know, right, was used against her by police years later. San Francisco’s District Attorney, Chesa Boudin, actually ended up dropping the case the next day amid concerns about the practice.


Tre’vell Anderson: And I hear that you actually got to talk to the D.A. about all of this last week.


Josie Duffy Rice: Yeah, so Gideon and I spoke with District Attorney Boudin about why this practice is so harmful and what he’s doing to make sure this doesn’t happen again. I started by asking him why he decided to drop the case.


Chesa Boudin: This is one case, but there’s a much bigger principle here. We need to do everything in our power to eliminate barriers to victims coming forward and reporting when they’ve been victimized, especially in serious and violent crimes. And these kinds of policies, policies of using without consent the DNA of survivors of sexual assault to build law enforcement databases is a tremendous and powerful deterrent to the kind of cooperation that is a necessary prerequisite for holding folks accountable who commit really serious crimes. And we want to be very clear in our communication to survivors of sexual assault, to other victims whose DNA may be submitted as part of an investigation, we will never use your DNA against you.


Gideon Resnick: How consistent of a practice do we know that this is at this point? And are there other places that you’ve identified similar problems that are outside your specific jurisdiction or outside what SFPD has been doing?


Chesa Boudin: The short answer is that this only came to my attention really recently, and so we have a lot more we need to learn. What I can tell you is that this is a practice that’s already been documented in one jurisdiction, I think was Bristol, Massachusetts, and that when I spoke with, when my staff spoke with the head of the San Francisco Police Department Crime Lab about this practice, they said it was common practice and standard protocol in crime labs far and wide. I want to make sure that in raising awareness and drawing public attention to this issue, we are reassuring survivors of sexual assault that they have rights and that we will respect them and stand with them and support them, not abuse their trust. And we’re going to pass legislation at the local and state level to make sure that there’s no confusion.


Gideon Resnick: Let’s talk about that legislation for a moment. Is that exclusively just within California? What is the extent of that so far and what actually would be in that legislation to prevent police from using victim DNA in this way?


Chesa Boudin: We’re working with Supervisor Hillary Ronen at the local level in San Francisco on legislation, and we’re working on very similar legislation at the state level with state Senator Scott Wiener and assembly member Phil Ting. So we’re really trying to take the lead on this issue for the rest of the state. Basically, what we are trying to do is two things with this legislation: first, prohibit any crime labs that do work with law enforcement from storing DNA profiles of victims in a database that’s used for other search purposes. And second, explicitly prohibit law enforcement from searching existing databases that may exist already for cases that are unrelated, if those databases include victim DNA. In other words, we want to require total segregation of the existing lawful databases from victim DNA.


Josie Duffy Rice: Moving to a sort of broader picture from just this story, there is this national narrative that you may have heard about, that crime is out of control, and San Francisco is often the example people use of this increase in crime, right? But the story, as you’ve identified multiple times, is really more complicated. Can you tell us more about what’s actually happening in San Francisco?


Chesa Boudin: Big picture when you look at data, overall crime is down. San Francisco is one of the safest cities in the country when it comes to violent crime. There are certain neighborhoods in San Francisco, as in every big city, where there’s a concentration of visible poverty, open-air drug use, mental illness. Sadly, what we see driving the national media conversation about San Francisco is really focused on just one neighborhood, The Tenderloin. And it ignores the rest of San Francisco and ignores the data that shows crime is down.


Gideon Resnick: Even still, you are facing a recall election in June, in part because of people’s perceptions of this particular issue. I guess how do you see your role in the struggle to address the issues that San Francisco faces in the context of all of that, and maybe that different perception versus the reality that we’re talking about?


Chesa Boudin: Well, my priority is to build safety for all of our communities, to do it in ways that’s equitable and that promotes justice. The problem is there’s so much misinformation and disinformation from police unions, from Republican strategists and their allies in corporate media, that there’s tremendous confusion about who does what. The district attorney is not responsible for the decision about who gets released from jail or who stays in jail after an arrest. It’s up to judges. I’m not saying this to blame judges for decisions they make, I’m saying it because people need to understand if they disagree with someone being released from custody or someone being held in custody, that that’s a decision that is made by judges. We make arguments, we advocate, we express our views, and judges make the decisions. So there’s nuance and complexity that gets glossed over. And it’s funny, it only seems to happen in jurisdictions with reform-minded prosecutors, where the media and the police unions want to blame us and reform for every single crime that occurs, without giving us credit for crimes prevented, categories of crime that are going down, or holding Republican tough-on-crime prosecutors to the same standard.


Josie Duffy Rice: And Tre’vell, that’s mine and Gideon chat with San Francisco D.A. Chesa Boudin. I would encourage people to look at the follow up of the story in USA today. It’s pretty wild.


Tre’vell Anderson: And we’ll put a link to the story about it in our show notes so you can read even more. That’s all for today. If you like the show, make sure you subscribe, leave a review, react calmly to a McDonald’s hamburger, and tell your friends to listen.


Josie Duffy Rice: And if you’re into reading, and not just the menu at McDonald’s without freaking out like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Josie Duffy Rice.


Tre’vell Anderson: I’m Tre’vell Anderson.


[together] And just open trash, insert phone.


Tre’vell Anderson: I told you it was easy, OK?


Josie Duffy Rice: It’s really not hard. Just throw it in there. Walk away.


Tre’vell Anderson: It’s so easy, even Trump could do it.


Josie Duffy Rice: Maybe. Well, now that he doesn’t have Twitter on his phone, perhaps.


Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.