FAIRFAX, VA — A Fairfax County judge has ruled that black defendants cannot receive a fair trial in a courtroom decorated with portraits of white judges and ordered the portraits removed prior to the man’s hearing.
Va. Judge David Bernhard orders portraits of White judges removed before Black man’s trial https://t.co/OuqqVfKdOY
— The Washington Times (@WashTimes) December 24, 2020
Fairfax County Circuit Court Judge David Bernhard issued an opinion Monday that portraits of past Fairfax County Circuit judges create the impression of a biased court. Judge Bernhard said he would not permit any portraits to be displayed at hearings he presides over:
“The Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites, and that thus others are of a lesser standing in the dispensing of justice.
“The Defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interest of paying homage to the tradition of adorning courtrooms with portraits that honor past jurists.”
But David Bernhard is white so is he saying the defendant can’t get a fair trial with him as the judge??
— Resist To The Last Straw (@TheOneToTheRigh) December 24, 2020
Judge Bernhard wrote the opinion in the case of Commonwealth of Virginia v. Terrance Shipp, Jr. Terrance Shipp is scheduled to appear before a jury on January 4, 2021, on charges of evading police and assault on a law enforcement officer, among other counts.
His defense attorney, Bryan Kennedy, filed a motion to have the portraits of white judges removed. Judge Bernhard wrote that he had to weigh the rights of Shipp against the intentions of honoring past judges:
“The Court has before it the question of whether it should permit a jury trial to take place in a courtroom gilded with portraits of jurists, particularly when they are overwhelmingly of white individuals peering down on an African American defendant whose liberty is the object of adjudication in the case.”
It follows then that white judge David Bernhard should recuse himself for a black judge.
— Everett Webb (@EverettWebb15) December 24, 2020
In the motion, Kennedy took issue with a portrait of the late Virginia Supreme Court Justice Harry Carrico, who issued an opinion in 1966 that upheld the state’s ban on interracial marriage. That ruling was later struck down by the United States Supreme Court in the landmark Loving v. Virginia ruling.
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Judge Bernhard said the court stands at “a point in judicial history where the moment calls for heightened attention to the past inequalities visited upon persons of color and minorities. He pointed out that 15 Fairfax Circuit Court judges signed a collective plan titled the “Initial Plan of Action to Address Systemic Racism and Enhance Civic Engagement With Our Community.”
— Unruly (@unrulyforest) December 24, 2020
The plan was based on a Virginia Supreme Court letter to the lower courts stating that judges “must take all reasonable steps to ensure that courtrooms in the Commonwealth, all people are treated equally and fairly with dignity under the law.”
Judge Bernhard said the collective plan called for any symbols of racism, such as public displays of historically racial figures, to be removed from courtrooms. Judge Bernard said that, although the individual judges may not have shown racial bias, the portraits represent a past where African Americans were not “extended an encouraging hand to stand as judicial candidates.”
Bernhard pointed out that 45 of the 47 portraits are of white jurists, and that the Circuit Court has only had three black judges in its history. He concluded his decision by writing:
“There may be contrary views holding the dignity of the Court process is not offended by celebrating the service of prior judges with display of their portraits. However, in weighing the interests of honoring past colleagues against the right of a defendant to a fair trial, the Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites, and that others are thus of lesser standing in the dispensing of justice.
“The defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interests of paying homage to the tradition of adorning courtrooms with portraits that honor past judges.”
Virginia Sanctuary Fairfax County Democrat Judge David Bernhard orders portraits of white judges removed from courtroom for Critical Race Theory during black defendant’s trial https://t.co/p8NdrVfP9F via @twitchyteam
— mathewsjw (@mathewsjw) December 24, 2020
Fairfax County Commonwealth Attorney Steve Descano (D), who also praised Judge Bernard’s November ruling banning cash bail, did not oppose the motion. He commended this ruling in a statement:
“The justice system has to work for everyone, and black and brown individuals need to feel comfortable in their community’s courthouse. We should be focused on making that a reality. I applaud Judge Bernhard and other jurists who take these matters seriously and are looking for innovative approaches to address hundreds of years of racial bias in our system.”
“I support Judge Bernhard’s ruling that cash bail is unconstitutional. I’m proud we submitted a brief in support of this ruling. This is why I’ve always instructed my prosecutors to not ask for cash bail.” – CA Descanohttps://t.co/mFfWlNdeME
Read brief: https://t.co/P10VjIZzji
— Fairfax County Commonwealth’s Attorney Descano (@FairfaxCountyCA) November 14, 2020
Not everyone was pleased by the ruling. Fairfax Republican Chairman Steve Knotts issued a statement that Judge Bernhard’s decision was regrettable:
“Judge Bernhard seems to have embraced this reductive, racialist view of his fellow man. We’d all do well to remember that, whether we are black or white, Christian or Jewish, immigrant or native-born, we are all equally human. As a culture, we must reject all divisive ideologies and, instead, unambiguously affirm our shared humanity.”
Prominent Virginia Defense Attorney Mark Dycio said he does not believe the portraits had any effect on justice:
“Notwithstanding the presence or absence of portraits in a courtroom, I believe judges and juries have the ability to be fair and objective.”
Judge Bernhard has served on the bench since 2017. Prior to his tenure, he worked as a defense attorney. He describes himself as a “white Hispanic,” according to The Washington Post. He was born in El Salvador and sought asylum in the United States in the 1970s.
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Author: Scott A. Davis