Posted on December 24, 2020

Va. Judge Rules Black Defendant Can’t Get a Fair Trial in Courtroom Largely Featuring Portraits of White Judges

Justin Jouvenal, Washington Post, December 22, 2020

A Fairfax County judge has ruled that a Black defendant can’t get a fair trial in a courtroom decorated overwhelmingly with portraits of White judges and has ordered the paintings to be removed for the man’s upcoming legal proceeding.

Fairfax County Circuit Court Judge David Bernhard wrote in an opinion issued late Monday that the portraits of past judges from the Fairfax County Circuit Court could create the impression that the court is biased. Bernhard wrote that he won’t allow any portraits to be on display for any trial 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,” 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.


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.