You Can’t Make This Stuff Up: Fairfax Courts Edition

Judge David Bernhard

by Hans Bader

A judge in Virginia’s Fairfax County has ruled that portraits of white judges must be removed from a courtroom to protect a black criminal defendant’s right to a fair trial. The idea that white people are so scary or racially offensive that just seeing them deprives minorities of a fair trial would have been viewed as laughably racist even a few years ago. But in today’s bizarre political climate, this idea is viewed as progressive. So the judge’s ruling was applauded by the liberal media.

Judge David Bernhard ruled that the white portraits had to be banished, in Commonwealth v. Shipp. As he put it, “The Defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interest of adorning courtrooms with portraits that honor past jurists,” because those portraits were “overwhelmingly of white individuals.” Since 45 of the 47 judges were white, he viewed their portraits as “symbols” that black people are “of lesser standing.”

The public defender had filed a “Motion to Remove Portraiture Overwhelmingly Depicting White Jurists Hanging in Trial Courtroom.” The motion was not opposed by Fairfax County’s left-wing prosecutor, Steve Descano. Descano was elected Commonwealth’s Attorney in 2018, after receiving over $600,000 in campaign funding from a group bankrolled by billionaire George Soros. Prior to being elected, the unqualified Descano had little experience as a prosecutor, and a conviction was overturned because Descano lied in his closing argument.

There is no evidence that portraits of white people threaten black people’s ability to get a fair trial, and the judge did not cite any. African-Americans routinely win cases in courtrooms with portraits of white judges. And they routinely lose cases in courtrooms with no portraits at all. As the prominent Virginia criminal-defense lawyer Mark Dycio points out, “judges and juries” are “unaffected by what art hangs on the walls of courtrooms.”

However illogical Judge Bernhard’s ruling may be, it may help him achieve his ambition of being elevated to the Virginia Court of Appeals. Democrats plan to pack Virginia’s Court of Appeals in 2021 by increasing its size to 15 judges from its current 11 judges.

Judge Bernhard wants to be on the Court of Appeals, and narrowly missed out on being appointed to it in the past. Lawyers are mostly progressives, and issuing a left-wing ruling like this could give Judge Bernhard an even higher profile among progressives. As Professor Maya Sen notes in the Harvard Gazette, “lawyers tend to be pretty left of center.”

As Wikipedia noted:

On March 2, 2020, Judge Bernhard was among six candidates from a wider initial candidate pool, interviewed by the Virginia General Assembly as a prerequisite for election to a vacancy on the Court of Appeals of Virginia. Bernhard received top ratings from eight legal bar organizations. … The Virginia Senate and House of Delegates failed to arrive at a consensus candidate potentially leaving future selection of the position in the hands of the Governor or to the 2021 session of the General Assembly.

However, it is possible that this ruling will backfire on Judge Bernhard. Lawyers seem mostly unimpressed with his ruling against the white judges’ portraits. The New York criminal-defense lawyer Scott Greenfield described it as “pure ideological drivel.” At Instapundit, law professor Gail Heriot called the judge’s ruling as a sign that “our country is dying of stupidity.”

The judge wrongly treated white judges’ portraits as a symbol “of racism.” But whiteness is not proof of racism. All nine of the U.S. Supreme Court justices who voted to strike down segregation in 1954 were white. All of the Massachusetts Supreme Court justices who declared slavery illegal in Massachusetts in 1783 were white. (The court’s ruling used the Massachusetts Declaration of Rights, which stated that “all men are born free and equal”, as the basis for saying that slavery was illegal.).

Vermont and Maine are the whitest states in the country — more than 94% white, even today. Yet, they were historically the least racist states: They allowed black people to vote and sit on juries even before the Civil War. All-white juries there have acquitted black defendants.

Nor are white people particularly menacing or dangerous to black people. Eighty-nine percent of black homicide victims are killed by black offenders, not whites, according to the FBI.

Nor are black people in great danger from whites in our criminal justice system: In 2019, 15 unarmed black people were shot and killed by police officers, compared with 25 whites. But white officers are no more likely than black or Hispanic officers to shoot black civilians. Black people are much more likely to be killed by an ordinary criminal than by a police officer. And as Peter Kirsanow, a black member of the U.S. Commission on Civil Rights, noted, “In 2015, a cop was 18.5 times more likely to be killed by a black male than an unarmed black male was likely to be killed by a cop.”

Nor do black people face an elevated risk of interracial violence from whites. As Kirsanow, an attorney, pointed out in the National Review:

Contrary to the tweets and posts of some celebrities, blacks aren’t being “hunted” by whites. … Between 2012 and 2015, blacks committed 85.5 percent of all black-white interracial violent victimizations (excluding interracial homicide, which is also disproportionately black-on-white). That works out to 540,360 felonious assaults on whites. Whites committed 14.4 percent of all interracial violent victimizations, or 91,470 felonious assaults on blacks.

So there is no logical reason why a collection of mostly white judicial portraits would intimidate a minority defendant. Nor would it interfere with a defendant’s ability to get a fair trial.

Hans Bader is an attorney living in Northern Virginia. This column has been republished with permission from Liberty Unyielding.

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32 responses to “You Can’t Make This Stuff Up: Fairfax Courts Edition

  1. fxco is becoming national laughing stock
    TJ lottery admissions
    releasing 1309 criminally insane- to where?
    no cash bail
    ICE detainers ignored

  2. I mean, really, who cares? Who cares if there are bad portraits of near-anonymous judges (some dead and gone) on the walls? Why not landscapes, some of those wonderful art deco murals from the 30’s, a high school class art competition? I honestly think this is just fine. Motion granted. Next?

    Might be nice to have headshots of the current lineup of judges posted somewhere in the halls with names so the public can see the players. But the old dead guys from way back? Nah.

  3. Bernhard needs to follow his thinking to its logical conclusion. If portraits of white judges are intimidating to black defendants, imagine how intimidating real-life white judges are. As a white person and a male (a double whammy), Bernhard must appear downright terrifying to minorities. He needs to step down now.

  4. Let’s face it, the Virginia bar is second rate and far, far below the quality of the District of Columbia bar. State court judges are rather marginal. (I am a member of the latter).

  5. James Wyatt Whitehead V

    Those scary judges and their menacing portraits. Every case ever heard in that court room is tainted. Release all prisoners and erase all files at once. The house cleaning needs to go all the way back to 1742.

  6. Baconator with extra cheese

    Tear down all photos, paintings, depictions, or statues of all humans in government buildings, documents, or public places.
    Plus remove human names from all listed above.
    The problem is then solved.
    I would also add we should remove all holidays that have any religious basis or birthday of a human as well.

  7. Much like twitter this has a recipe for the downfall of society.

  8. “Prior to being elected, the unqualified Descano had little experience as a prosecutor, and a conviction was overturned because Descano lied in his closing argument.”

    Why is he still in office? Lying in court is just about the biggest betrayal of the public trust a prosecutor can be guilty of.

    • Hey, hey, hey! The Post’s editorial board was for Descano. How can we mere mortals challenge that?

    • I would presume that would trigger a bar review, and possible suspension on his right to practice. However, that appears to not be the case, and I guess it’s true you can tell when a Lawyer is lying, their mouths are moving.

    • Is he a prosecutor? There’s your answer.

      You can thank the SCOTUS for this.

    • Based on the links provided by Mr. Bader, the basis for the statement that Descanos lied is a claim made by the former prosecutor whom Descano defeated in a primary. Not the most objective source. If he actually lied, I would think the State Bar would have taken some action.

      • Good point. I would, of course, need to verify he had actually lied in court before I’d work for his removal from office. In the Culpeper case 9 years ago there was no question.

      • Dick, your confidence in the bar’s diligence and fairness just touches my heart. Or, in a word, it’s touched. No, it would need to be forced to act. Not like this guy is Joe Morrissey, who is on their speed dial….

      • Most bar associations are little more than lobbying groups. Oh, they get the bad apples, but generally not if they are “important” either in politics or economics.

        • The Virginia State Bar is the state agency that licenses lawyers and regulates the legal profession. It is sometimes confused with bar associations. And, yes, the State Bar would be “forced to act” in the sense that someone would have to file a formal complaint that Descano, or any other lawyer, had violated the code of legal ethics.

  9. Back in the Soviet Union, art students were required to paint portraits of Communist bosses. The students would secretly insert small pieces of lard behind the object’s eyes. Later, when the paintings were hung, rats would come at night and eat out their eyes. Maybe
    This approach could work in Virginia

  10. So, Hans… imagine yourself a criminal defendant in a courtroom with a painting of the Crucifixion above the bench and a judge who begins his court sessions with the Lord’s Prayer.

    Now imagine you are a Muslim, Hindu, Buddhist…

    Such as it might’ve been before Roy Moore.

    Back in the days of school prayer, I know that I felt like “The Other” when the rest of the class continued with “for thine is the Glory…”

    • On the subject of being made to feel “The Other”, I was a Catolic in those days and I felt estranged by prayer in school simply by the difference in the prayer ending.

      Perhaps one of our older Jewish posters could give us their opinion of their feelings at the time?

      Mr. Whitehead, or TooManyTaxes, care to comment?

      • Interesting. I just had a conversation on this topic with some of my Jewish friends. We were in agreement that Americans have become dangerously hypersensitive to perceived slights. Far too much obsession with triggers and micro-aggressions. Far too much self-righteousness and self-pity.

        We live in a multi-cultural society, which, by definition, means that you will at some point feel like ‘The Other’. If you’re mature, you realize that’s fine – you get to share your life with people who do not share your culture and whose culture you do not share. If it’s not fine, you need to move to a homogeneous community where everyone is just like you.

        And when you are a member of a minority group, you recognize that tolerance is a two-way street. We can expect that we will be tolerated despite our ‘otherness’ and that the majority will make some accommodation to our differences. But we have to be respectful of the majority, as well – we have to make accommodations to their majority culture, as well.

        I’m thankful that our Founding Fathers created a secular government that separates church and state. I see no point in prayer in school and I’m glad it’s gone. But having said that, my elementary school was still holding Christmas pageants when I was in 6th grade. The choir (which included Jewish students) marched down the aisles singing Adeste Fildelis. I was selected to be the MC of the pageant – as Santa Claus. My parents, who were observant Jews, were proud that I had the lead role. My Christian friends knew that I was Jewish and that I didn’t celebrate Christmas, and they didn’t care. (An orthodox rabbi I knew went to a Catholic school as a child. He was treated with respect and equal to the other students, though he was exempt from attending mass. Overall, he highly praised his education there.)

        Back in the early 80s, I was on the board of the Jewish Community Relations Council – Anti-Defamation League for Minnesota and the Dakotas. We’d occasionally get calls from members of the community who freaked out when they learned that some people in rural Minnesota use the word ‘jew’ as a verb. We would point out that, generally, the people who speak that way did not intend any harm to Jews – it was simply an unfortunate part of their vocabulary. (On the other hand, members of the Posse Comitatus in western Minnesota and the Dakotas were a concern – they proactively disliked Jews). I remember one board meeting when some young members were wailing about some minor slight. The holocaust survivors on the board patiently directed them to settle down – the young people had no idea what real hostility towards Jews was like.

        Apparently, Judge Bernhard believes that it is not possible to live in a multi-cultural, multi-racial, multi-ethnic community. If a portrait of a white judge on a wall suggests a black defendant cannot get a fair trial, then what terror does that defendant feel when he’s in front of an actual living and breathing white judge? Not exactly the lesson of Brown v. Board of Education, but we live in different times.

        • “If it’s not fine, you need to move to a homogeneous community where everyone is just like you.”

          Some do. Some places some are forced to. Or, there is another option. Change it — even in the wilds of Minnesota. If you don’t say something, you accept it… or eventually may be force to accept it.

          Yeah, I’ll bet that black defendant does have a feeling of terror in front of the white judge. But, at that point, he’s probably somewhat relieved he survived being arrested.

          • Yes, Ms. Snark, even in the wilds of Minnesota, you can make changes. But what are you talking about? Change what? To what?

            If you’re one of the few students not attending school on the Jewish holidays, you will feel like The Other. Fact of life. What would you change? Should I have attended school to feel not ‘other’? Should the school have closed on Jewish holidays so that I would not feel ‘other’?

            You went to a Catholic school but felt estranged because you didn’t like the Catholic prayers? Did I read your comment correctly? What did you expect in a Catholic school? Did you give any thought to the possibility that you needed to respect the prayers of the others? That it wasn’t just about you?

            Being different than others is true for every social grouping. Anyone growing in a minority community understands that. But you can also ask any high school student who is not in the “In Crowd”. That’s life. As long as there is some amount of mutual respect and tolerance, dealt with it. There’s nothing to change.

            Your final comment was incredible. A black defendant feels terror in front of a judge because the judge is white? Do you really believe that? Black defendants are terrified because the judge is white and not because they are charged with a felony?

            Is this based on you experience? Which courts have you been visiting? It’s a bet you would lose.

          • Awareness. That’s what I would change. Where it goes from there, meh.
            That terror of the white judge was based on your remark.
            The terror of the cop is real.

        • “Far too much obsession with triggers and micro-aggressions. Far too much self-righteousness and self-pity.”

          Very well stated, I’m just dumbfounded by this new society that is so fragile that even the most innocent thing can be perceived as a slight.

          The overarching theme at least in my view is that peoples end state is belittlement of others. If you’ve reached that point, you’re not with the time nor effort.

  11. What is the theory of jurisprudence the judge uses? This is not explained in the post or in the comments. Is it Critical Legal Theory related such as in Critical Criminology? The legal reasoning behind the decision is unclear. Not a lawyer but just a layman trying to understand the jurisprudence here.

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