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Fighting a ‘perception of injustice’: Fairfax judge to remove courtroom portraits for trial

Decorative Scales of Justice in the Courtroom

A Fairfax County judge says he will not force a Black defendant to go on trial in a courtroom lined with portraits of white judges.

Circuit Judge David Bernhard granted a motion to remove courtroom portraits that “overwhelmingly” depict white jurists for the Jan. 4 trial of Terrance Shipp on charges of eluding police.

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,” Bernhard wrote in his Dec. 20 opinion.

He declared that, going forward, all criminal jury trials over which he presides will be in courtrooms devoid of portraits “in the furtherance of justice.”

The opinion is Commonwealth v. Shipp (VLW 020-8-143).

Heightened attention urged

Bernhard explained that – because of pandemic restrictions – he would be holding trial in one of the county’s larger courtrooms rather than his usual, smaller venue. While Bernhard’s regular courtroom has no portraits, the larger courtroom, he said, was “replete with portraits of past white jurists.” He said 45 of 47 portraits in county circuit courtrooms are of white judges.

“We stand at a point in judicial history where the moment calls for heightened attention to the past inequities visited upon persons of color and minorities,” Bernhard wrote. He pointed to the court’s Aug. 14 plan to address systemic racism and enhance community engagement.

While only three African American judges have been named to the Fairfax County circuit bench, Bernhard noted that Fairfax attorney Tania M.L. Saylor was recommended last month by the county’s legislators for a circuit vacancy. She would be the first woman of color on that bench, Bernhard said.

The legislators also support lawyers Melissa Sanchez Cardoce and Melinda L. VanLowe for openings on the county juvenile and domestic relations court. Cardoce is of Hispanic descent and VanLowe is African American.

Motion unopposed

The portraits themselves are largely without context in the day-to-day proceedings that take place before them, Bernhard said.

“To the public seeking justice inside the courtrooms, thus, the sea of portraits of white judges can at best yield indifference, and at worst, logically, a lack of confidence that the judiciary is there to preside equally no matter the race of the participants,” Bernhard wrote.

He cited canons of judicial conduct calling for enhancing confidence in the legal system and discouraging bias or prejudice.

“The display of portraits of judges in courtrooms of the Fairfax Courthouse is based on a non-racial principle, yet yields a racial result. The risk of fostering the perception of injustice or bias on the part of a jury, be it respecting a defendant or victim of color, weighs against permitting the showing of portraits during the jury trial of the Defendant, particularly when the portraits can be easily removed for the duration of the jury trial and later redisplayed without offense to those, if any, who may be of a different opinion,” Bernhard wrote.

The office of Commonwealth’s Attorney Steve Descano did not oppose the motion to remove the portraits for trial, Bernhard said.

Dawn Butorac, the chief public defender in Fairfax County, called the judge’s ruling “a very, very, very small step in a long overdue journey to battle systemic racism” in the judicial system, according to the Associated Press.

Bernhard’s ruling does not affect whether other judges in the courtroom must take judicial portraits into account.

Bernhard was born in El Salvador and elected to the bench in 2017 by the state legislature.

Earlier this year, a judge ordered a portrait of Confederate Gen. Robert E. Lee removed from a Louisa County courtroom.