“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,” Bernhard wrote. “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.”
Bernhard’s ruling came in response to a request to remove the portraits contained in a motion from Terrance Shipp Jr., who is scheduled to stand trial Jan. 4 on charges of eluding police, assault on a law enforcement officer and other counts.
Bernhard wrote in his opinion that the country is at a moment that calls for “heightened attention to the past inequities visited upon persons of color,” an apparent reference to the nationwide protests over the treatment of minorities in the criminal justice system in the wake of the killing of George Floyd.
In his opinion, Bernhard pointed out that 45 of the 47 past judges whose portraits hang in the Fairfax County courthouse are White, and the Circuit court has had only three Black judges in its history.
Bernhard, a former defense attorney who has been on the bench since 2017, describes himself as “White Hispanic.” He was born to parents of Jewish and German descent in El Salvador, before seeking asylum in the United States in the 1970s.
Bryan Kennedy, a senior assistant public defender and attorney for Shipp, said in a statement that Virginia’s legal system has a long history of racial bias.
“Too often, the actors in the system do not look like the people who are swept up into it,” Kennedy said. “This ruling is a start to ensure the optics in our courtrooms are more consistent with justice, but more work is needed to improve the substance as well as the appearance of justice.”
At the time Kennedy filed his motion, he was concerned that Shipp’s trial might take place in a courtroom that featured a portrait of the late Virginia Supreme Court Justice Harry Carrico, who wrote a 1966 opinion upholding the state’s ban on interracial marriage. The Supreme Court later struck the law down in a landmark decision known as Loving v. Virginia.
Shipp’s trial has since been moved to another courtroom with fewer portraits.
The office of Fairfax County Commonwealth’s Attorney Steve Descano, a Democrat, did not oppose the motion to remove the portraits put forward by the defense but declined to comment Tuesday.
Steve Knotts, chairman of the Fairfax County GOP, said in a statement that Bernhard’s decision was regrettable and exhibited the tendency of liberals to narrowly view people through the lens of race.
“Judge Bernhard seems to have embraced this reductive, racialist view of his fellow man,” Knotts said. “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.”
Not everyone was convinced the portraits have much of an impact. Mark Dycio, a prominent Virginia defense attorney and a Republican, said he thought that judges and juries were unaffected by what art hangs on the walls of courtrooms.
“Notwithstanding the presence or absence of portraits in a courtroom, I believe judges and juries have the ability to be fair and objective,” Dycio said.
Bernhard joins a growing list of judges across the nation who are reevaluating symbols and paintings in courthouses that some perceive as reinforcing a painful legacy of bias in the justice system.
In September, a Louisa County, Va., judge ordered the removal of a painting of Robert E. Lee from a courtroom ahead of a murder trial involving an African American defendant.
And a North Carolina commission has been grappling with how to handle a massive portrait of a judge who was an enslaver that hangs behind the bench where the state’s Supreme Court presides.
The reevaluation is occurring in the broader context of local, state and federal officials examining statues and symbols that many deem offensive following a summer of historic racial justice protests. This week, a statue of Lee that represented Virginia was removed from the U.S. Capitol.
Bernhard wrote in his opinion that the canons that guide ethical conduct for judges in Virginia require them to strive to enhance and maintain confidence in the legal system and act with impartiality.
He cited a book written by Anthony Ray Hinton, a Black man who spent three decades on death row before the U.S. Supreme Court overturned his conviction. Hinton described the experience of walking into an Alabama courthouse and seeing mostly White faces as being like “an uninvited guest in a rich man’s library.” Bernard wrote the portraits might create a similar feeling for minority defendants in Fairfax County.
“Perception is often deemed reality to those participating in the justice system,” Bernhard wrote.