David Bernhard

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David Bernhard
Bernhard in 2012
Judge of the 19th Judicial Circuit Court of Virginia (Fairfax)
Assumed office
July 1, 2017
Appointed byVirginia General Assembly
Judge-elect of the Court of Appeals of Virginia (starting 1/1/2025)
Personal details
BornSan Salvador, El Salvador
EducationWashington University School of Law (JD)

David Bernhard is an American jurist who is a trial judge of the Fairfax Circuit Court, elected February 23, 2017, by the Virginia Senate[1] and the Virginia House of Delegates,[2] for an 8-year term commencing July 1, 2017. Bernhard is the second immigrant,[3] and the first one from Latin America, to have been elected to the Virginia Circuit Court.[4] Bernhard was sworn into office on June 30, 2017.[5]

On March 7, 2024, the Virginia General Assembly elected him to serve as a judge on the Court of Appeals of Virginia for an 8-year term commencing January 1, 2025, becoming the first Hispanic and Latino American, and the first immigrant elected to serve on a Virginia appellate court.[6][7][8][9]

Early years and education[edit]

David Bernhard, born in El Salvador, later sought asylum based on family endangerment from leftist guerrillas, and handled his own immigration case while a college student, becoming a United States citizen.[10]

In 1980, Bernhard received his high school diploma from Northfield Mount Hermon School in Northfield, Massachusetts. In 1983, he graduated from Brandeis University in Waltham, Massachusetts, with a B.A. in Economics and Political Science.[11] He completed his J.D. degree in 1985 at Washington University School of Law, in St. Louis, Missouri.[12] He is fluent in the English, Spanish and German languages.[13]

Career[edit]

Bernhard was admitted to practice law in Maryland in 1989, Virginia in 1988, the District of Columbia in 1987, Missouri in 1986.[13] From 1991 to 2017 he was in partnership with attorney Cheryl Gardner at the law firm of Bernhard & Gardner.[12] In 2005, Bernhard with Gardner[14] and others, co-founded and until May 2017 co-moderated VADefenses Listserv, an internet-based forum for the advancement of ethics and competence in the practice of criminal law.[11][13]

Bernhard's trial practice included the handling of a murder case[15] which was the second instance[16] of a jury trial being televised in the Fairfax Circuit Court,[17] engendering debate as to the circumstances under which cameras ought to be allowed in a courtroom.[18] Notable matters he and Cheryl Gardner handled included challenging admissibility of certificates of analysis offered without the presence of a technician in DUI prosecutions,[19] and confronting problems with enforcement of Northern Virginia toll road civil penalty cases,[20] in each case contributing to the enactment of changes to the Code of Virginia.[21][22] His appeals, which involved collaboration with Gardner, include Virginia's first civil Gideon case, a cooperative effort with Clarence Dunnaville,[23] culminating in amending legislation expanding the right to counsel;[24] the Benitez decision policing abusive litigation practices;[25] and the Kim opinion, providing a bright line test as to when private property is subject to the traffic laws of Virginia applicable to "statutory highways."[26] Bernhard helped reconstitute, and from 2011 to 2014, was co-chair of the Fairfax Bar Criminal Law Practice Section, serving for the last year in collaboration with Michael J. Lindner, for which effort he was recognized with a Fairfax Bar Association President's Award.[11] In 2012 he was named a “Leader in the Law” by Virginia Lawyers Weekly.[27]

Judicial career[edit]

In a podcast interview, Bernhard detailed his improbable journey to becoming a judge,[28] and what it is like to serve in such role.[29]

Upon assuming office he was an early proponent and implementer[30] of developing evidence-based sentencing[31] and pre-trial practices.[32] Bernhard has been in the forefront of the elimination of cash from consideration of whether and under which conditions criminal suspects should be released while awaiting trial.[33][34] He has declined to impose discretionary cash or surety bond release conditions on those accused of crimes,[32] arguing that such monetary requirements often amount to "wealth-based detention"[35][36][37] and do little to ensure public safety in the case of the dangerous, while serving in many instances to unnecessarily incarcerate those whose release poses little adverse risk that cannot be addressed through other pretrial terms.[38] Starting in 2017, Bernhard exercised judicial discretion to inform jurors during jury selection of the penalty ranges a defendant faces in the context of examining sentencing bias and reducing the chance of mistrials, and set forth the practical benefits to justice of such practice, in writing.[39] In 2020, the Virginia General Assembly resolved the controversy of whether juries should be so advised by mandating the right to such disclosure by statute.[40]

On August 14, 2020, Bernhard joined fourteen judicial colleagues in adopting a landmark plan to promote racial equality, diversity in qualified candidates for appointment as sub-judges, and other measures to enhance public confidence in the fairness of the Fairfax Circuit Court.[41]

Election to the Court of Appeals[edit]

During 2020-22, Bernhard was among the finalists considered for election to the Court of Appeals and Supreme Court of Virginia, receiving positive evaluations from a number of Bar organizations.[42][43][44]

On March 7, 2024, the Virginia General Assembly's Democratic majority voted favorably in the Virginia Senate,[45][7] and there was a bipartisan favorable vote in the Virginia House of Delegates,[46][6] electing Bernhard to serve as a judge on the Court of Appeals of Virginia to commence an 8-year term on January 1, 2025. Bernhard became the first Hispanic and Latino American, and the first immigrant, elected to serve on a Virginia appellate court.[8][9]

Notable opinions[edit]

Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions,[47][48] which in Virginia constitute persuasive authority.[49] Bernhard's notable judicial opinions issued as a trial judge reflect a succinct and accessible writing style that states upfront the what, the how and the why for his decisions, which include among others the following in chronological order:[47][50]

  • analyzing and rejecting application of the rule of the last antecedent,[51] and determining unlicensed noncommercial lenders are subject to the Virginia Consumer Protection Act;[52][53][54]
  • finding use of cash bail unconstitutional as-applied;[55][56][57][38]
  • granting a defense request as a matter of judicial discretion promoting courtroom neutrality, to conduct a jury trial devoid of a symbolically skewed backdrop of portraits that favor any race, which could unintentionally and mistakenly impart African Americans are of lesser standing in the dispensing of justice;[58][59][60]

References[edit]

  1. ^ "Senate Resolution No. 158 - February 23, 2017". lis.virginia.gov. Archived from the original on 2017-04-28. Retrieved 2018-01-12.
  2. ^ "House Resolution No. 453 - February 23, 2017". lis.virginia.gov. Archived from the original on 2017-04-24. Retrieved 2018-01-12.
  3. ^ "John Tran, First Asian-American Immigrant Circuit Court Judge in Virginia". Washington Post. 2013-04-05. Archived from the original on 2019-06-30. Retrieved 2019-06-30.
  4. ^ Jouvenal, Justin (2017-02-27). "He once sought asylum in the United States. Now, he's been named a judge". Washington Post. ISSN 0190-8286. Archived from the original on 2018-01-04. Retrieved 2017-12-19.
  5. ^ "Fairfax Circuit Court Judges". www.fairfaxcounty.gov. Archived from the original on 2018-08-25. Retrieved 2017-12-19.{{cite web}}: CS1 maint: unfit URL (link)
  6. ^ a b "House Resolution 342 - March 6, 2024". lis.virginia.gov. Archived from the original on 2024-03-09. Retrieved 2024-03-08.
  7. ^ a b "Senate Resolution 134 - March 6, 2024". lis.virginia.gov. Archived from the original on 2024-03-09. Retrieved 2024-03-09.
  8. ^ a b "Michelle Lopes Maldonado on LinkedIn (Chair, Courts of Justice Judicial Subcommittee, Virginia House of Delegates)". www.linkedin.com. Archived from the original on 2024-03-17. Retrieved 2024-03-17.
  9. ^ a b Boleman, Jason (2024-03-17). "General Assembly taps circuit court judges for Court of Appeals | Virginia Lawyers Weekly". Archived from the original on 2024-03-17. Retrieved 2024-03-17.
  10. ^ Jouvenal, Justin (2017-02-27). "He once sought asylum in the United States. Now, he's been named a judge". Washington Post. ISSN 0190-8286. Archived from the original on 2021-01-04. Retrieved 2022-07-10.
  11. ^ a b c "Judicial Screening Fall 2016 - Fairfax Bar Association". fairfaxbar.org. Archived from the original on 2018-11-11. Retrieved 2017-04-25.
  12. ^ a b "Firm Spotlight - Washington University Law Magazine (page 44-45)" (PDF). law.wustl.edu. Fall 2013. Archived from the original on 2018-09-08. Retrieved 2018-01-12.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  13. ^ a b c "Executive Summary: October 2016 Fairfax Circuit Court Judicial Screening" (PDF). cdn.ymaws.com. Archived (PDF) from the original on 2022-12-25. Retrieved 2020-05-24.
  14. ^ "This tool can help reduce the incarceration rate in Virginia. Too bad it's underused". Washington post.com. 2019-06-14. Archived from the original on 2019-06-29. Retrieved 2019-07-05.
  15. ^ Jury deliberating in Vanessa Pham murder trial, retrieved 2023-09-22
  16. ^ Jackman, Tom (2013-07-29). "Fairfax judge allows cameras in a trial for the first time since 1994, and that's a good thing". Washington Post. Archived from the original on 2018-08-28. Retrieved 2017-12-19.
  17. ^ Jackman, Tom (2013-08-29). "In Fairfax, cameras in the Pham murder trial: Not intrusive, but did they affect the sentence?". Washington Post. Archived from the original on 2017-05-19. Retrieved 2017-12-19.
  18. ^ Bernhard, David (2014-11-28). "Getting used to cameras in Virginia courtrooms". Washington Post. ISSN 0190-8286. Archived from the original on 2017-12-22. Retrieved 2017-12-19.
  19. ^ Jackman, Tom (2009-07-18). "High Court Ruling Voids Va. DWI Case Over Lack of Breathalyzer Testimony". The Washington Post. ISSN 0190-8286. Archived from the original on 2017-04-26. Retrieved 2017-12-19.
  20. ^ "Defense attorney unveils strategy to challenge huge E-ZPass Express Lane fines - Story | WTTG". Fox5dc.com. 2015-01-05. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  21. ^ "Bill Tracking - 2009 session > Legislation". lis.virginia.gov. Archived from the original on 2017-12-22. Retrieved 2017-05-12.
  22. ^ "Bill Tracking - 2016 session > Legislation". lis.virginia.gov. Archived from the original on 2017-12-22. Retrieved 2017-05-12.
  23. ^ Capsalis, Manuel A. (February 2009). "The Ways of a Gentle Warrior" (PDF). vsb.org. Archived (PDF) from the original on 2020-07-31. Retrieved 2018-01-12.
  24. ^ "Bill Tracking - 2012 session > Legislation". Lis.virginia.gov. 2012-03-30. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  25. ^ "Ford Motor Company v. Benitez | Findlaw". Caselaw.findlaw.com. 2007-01-12. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  26. ^ "Kim v. Commonwealth | Findlaw". Caselaw.findlaw.com. 2017-04-13. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  27. ^ "Presenting the 'Leaders in the Law' Class of 2012". Virginia Lawyers Weekly. 2012-08-15. Archived from the original on 2017-05-18. Retrieved 2017-12-19.
  28. ^ Episode 53: Journey To Judgeship - Crime Time: With Virginia Defense Attorneys, archived from the original on 2022-12-25, retrieved 2022-03-26
  29. ^ Episode 56: Here Comes The Judge - Crime Time: With Virginia Defense Attorneys, archived from the original on 2022-12-25, retrieved 2022-03-29
  30. ^ "Evidence Based Sentencing Practices CLE". www.fairfaxbar.org. Archived from the original on 2022-12-26. Retrieved 2018-01-24.
  31. ^ "Using Evidence-based Practices in Sentencing Criminal Offenders". knowledgecenter.csg.org. 2012-07-03. Archived from the original on 2017-12-25. Retrieved 2017-12-24.
  32. ^ a b Rose, Kenneth (December 2013). "The New Norm for Pretrial Justice in Virginia" (PDF). www.dcjs.virginia.gov. Archived (PDF) from the original on 2018-02-09. Retrieved 2018-01-12.
  33. ^ Jouvenal, Justin (2018-06-14). "A judge appears to be the first in Northern Virginia to drop cash bonds". Washington Post. ISSN 0190-8286. Archived from the original on 2018-06-15. Retrieved 2018-06-15.
  34. ^ "While Virginia studies cash bail alternatives, local prosecutors and judges increasingly take reform into their own hands - Virginia Mercury". Virginia Mercury. 2018-11-26. Archived from the original on 2018-12-01. Retrieved 2018-12-01.
  35. ^ "Federal judge on landmark Harris County bail suit implements revisions to policy". Houston Chronicle. Archived from the original on 2018-06-30. Retrieved 2018-07-01.
  36. ^ Vieth, Peter (2018-07-09). "The argument over bail". Virginia Lawyers Weekly. Archived from the original on 2018-07-10. Retrieved 2018-07-09.
  37. ^ "The argument over bail. - Free Online Library". www.thefreelibrary.com. Archived from the original on 2018-11-18. Retrieved 2018-11-18.
  38. ^ a b "Com. v. Corey Hunter" (PDF). fairfaxcounty.gov. 2020-11-06. Archived (PDF) from the original on 2023-03-02. Retrieved 2023-03-01.
  39. ^ "Commonwealth v. Hockett Barela - MI-2017-4" (PDF). fairfaxcounty.gov. 2017-09-28. Archived (PDF) from the original on 2018-08-25. Retrieved 2018-01-12.
  40. ^ "HB100 Bill Tracking - 2020 session > Legislation". lis.virginia.gov. Archived from the original on 2020-10-20. Retrieved 2020-04-18.
  41. ^ "Fairfax Circuit Court Initial Plan of Action to Address Systemic Racism And Enhance Civic Engagement With Our Community, adopted August 14, 2020" (PDF). fairfaxcounty.gov. Archived (PDF) from the original on 2020-12-26. Retrieved 2020-08-22.
  42. ^ Vieth, Peter (2021-02-08). "VSB ranks candidates for Appeals Court seats". Virginia Lawyers Weekly. Archived from the original on 2021-02-20. Retrieved 2023-10-18.
  43. ^ "VWAA Supreme Court Judicial Evaluations - 3/14/2022" (PDF). Archived (PDF) from the original on 2021-02-25. Retrieved 2023-10-18.
  44. ^ Schapiro, Jeff E. (2022-03-02). "Schapiro: Jury's out on whether lawmakers can agree on judges". Richmond Times-Dispatch. Archived from the original on 2022-03-02. Retrieved 2023-10-18.
  45. ^ "LIS > Bill Tracking > SR134 > 2024 session". lis.virginia.gov. Retrieved 2024-04-20.
  46. ^ "LIS > Bill Tracking > HR342 > 2024 session". lis.virginia.gov. Retrieved 2024-04-20.
  47. ^ a b "Letter Opinions". fairfaxcounty.gov. Retrieved 2019-05-04.
  48. ^ "Judge David Bernhard – Virginia Lawyers Weekly". Archived from the original on 2020-08-17. Retrieved 2020-04-25.
  49. ^ Ullian, Jeanne (2008). "Feeling Short Circuited? Assessing the Availability of Circuit Court Opinions" (PDF). vsb.org. Archived from the original (PDF) on 2022-06-02. Retrieved 2017-12-24.
  50. ^ "Judge David Bernhard". Virginia Lawyers Weekly. Archived from the original on 2023-01-15. Retrieved 2023-04-13.
  51. ^ "Com. v. NC Financial Solutions of Utah, LLC, No. CL 2018-6258, at *16, 2018 WL 5621026, at *7 (Fairfax Cir. Ct. October 28, 2018)" (PDF). fairfaxcounty.gov. 2018-10-28. Archived (PDF) from the original on 2022-05-23. Retrieved 2023-04-01.
  52. ^ Ress, Dave. "Judge denies online lender's request to dismiss Virginia lawsuit over interest rates". dailypress.com. Archived from the original on 2018-11-13. Retrieved 2018-11-12.
  53. ^ "Venue is appropriate for Attorney General's suit". Virginia Lawyers Weekly. 2018-11-12. Archived from the original on 2018-11-12. Retrieved 2018-11-12.
  54. ^ Vieth, Peter (2018-11-19). "Circuits split on lenders' loophole". Virginia Lawyers Weekly. Archived from the original on 2018-11-19. Retrieved 2018-11-19.
  55. ^ Oliver, Ned. "Fairfax judge rules cash bond unconstitutional". Virginia Mercury. Archived from the original on 2020-11-17. Retrieved 2020-11-14.
  56. ^ "Bond for DWI suspect was unconstitutional". Virginia Lawyers Weekly. 2020-11-20. Archived from the original on 2020-11-29. Retrieved 2020-11-21.
  57. ^ Vieth, Peter (2020-11-23). "Fairfax judge: Bail was unconstitutional for indigent defendant". Virginia Lawyers Weekly. Archived from the original on 2020-12-20. Retrieved 2020-11-23.
  58. ^ Editorial Board. "Opinion | A Virginia judge reconsiders the portraits of judges — virtually all White — lining his courtroom walls". Washington Post. ISSN 0190-8286. Archived from the original on 2021-01-12. Retrieved 2021-01-09.
  59. ^ Miller, Lauren (2022-04-01). "'A Sea of White Faces': How Courtroom Portraits Undermine Justice in Virginia". Undergraduate Honors Theses. Archived from the original on 2022-07-02. Retrieved 2023-04-12.
  60. ^ "Com. v. Terrance Shipp, Jr" (PDF). fairfaxcounty.gov. 2020-12-20. Archived (PDF) from the original on 2023-03-02. Retrieved 2023-03-01.


External links[edit]

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