Fairfax jury trials with one Circuit Court judge will have no portraits of past judges on the wall

Fairfax jury trials are in the process of resuming, mainly starting with criminal defendants being held without any payable or affordable bond. As a Fairfax criminal lawyer, I know that one judge this week made the bold ruling to keep past judges’ portraits off his courtroom walls during jury trials.

An archaic phenomenon in many courthouses is to hang original expensive painted portraits of past judges on the walls of one or more courtrooms. I take it that one or more local bar associations raise substantial funds for such an undertaking, when a nice photograph makes more sense now that oil painting is not the only show on the road. With few non-lawyers interested in such curiosities, these portraits typically are relegated to courtrooms and courthouse hallways, except now they will not grace the walls of David Bernhard’s courtroom for Fairfax jury trials. Commonwealth of Virginia v. Terrence Shipp, Jr., Fairfax County Circuit Court No. FE-2020-8.

Why Are Judicial Portraits Being Removed For Fairfax Jury Trials Before Judge Bernhard?

Virginia is the cradle of the confederacy, is the cite of too many lynchings, has a shameful Jim Crow past, and has seen its government on the wrong side of such court cases as United States Supreme Court’s ruling against criminalizing interracial marriage. With legislation that took effect this year, courthouses may now remove statues of confederate soldiers, and any other historical military markers, which helps explain the recent removal of the John Marr two-cannon exhibit (confederate cannon displays in the commonwealth point in the direction of the Update). Now Judge David Bernhard has stepped up to the plate to withdraw wall portraits during Fairfax jury trials, expecting that the Fairfax jury trial plan during Covid will bring him into the larger courtrooms that have such portraits.

Watch Virginia Judges Join In Transporting Judicial Portraits To Courthouse Supply Closets

Virginia Judge David Bernhard is a noticeable judge, starting with his story of having represented himself in successfully applying for political asylum decades ago, proceeding  to to his prolific nature with written opinions, which do not need to be issued in the first place at the Virginia state trial court level, and standing out further with his decision not to entertain cash bonds for cases before him. I foresee other judges in Virginia and beyond joining Judge Bernhard’s approach to not letting oil paintings saddle non-white litigants for Fairfax jury trials with concerns about obtaining a fair Fairfax jury trial

Fairfax Judge Bernhard’s Removal Of Judicial Paintings From The Courtroom Walls Follows The Removal Of A Robert E. Lee Portraits In Another Courthouse

For decades, a portrait of confederal military leader Robert E. Lee gathered prominent dust on the wall of a small Virginia county’s Circuit Courtroom, but only after the criminal defense lawyer there re-pushed for such relief several months after the judge first declined to remove Lee’s image from the courtroom. What is remarkable with Judge Bernhard’s ruling for Fairfax jury trials is that the character of the removed portrait subjects is not being considered, rather than proceeding as a step to give more litigants confidence in the fairness of the court and to enhance the opportunity for a fair trial for non-white people.

Judge Bernhard Is Far From Taking A Rogue Step In Removing Portraits From Jurors’ View

As much as El Salvador-born Judge Bernhard is an independent actor, his decision to proceed without visible judicial portraits during Fairfax jury trials is not a rogue nor ill-advised action. He makes a good point that his order flows from the August 2020 unanimous Circuit Court judge resolution about addressing systemic racism, subsequent to the death of George Floyd in police custody and during the height of the Black Lives Matter movement. This resolution includes identifying “whether there are symbols in the courthouse and courthouse grounds that carry implications of racism, such as public displays of historical figures who have demonstrated racial hostility.” Judge Bernhard concludes that the “prevalence of portraits of white judges in the courtrooms of the Fairfax Circuit Court, which constitute some forty-five (45) of the forty-seven (47) individuals, while not emblematic of racism on the part of presiding judges, certainly highlights that until the more recent historical past, African Americans were not extended an encouraging hand to stand as judicial candidates.” This is not a matter of balancing any rights of lifeless paintings against the Due Process rights of litigants; the real humans should win out.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against DUI, felony and misdemeanor prosecutions. Call us at 703-383-1100 to schedule your free initial in-person confidential consultation with Jon Katz about your court-pending case.