In December 2020, Fairfax County Circuit Court Judge David Bernhard ordered the removal of the portraiture that hung in the courtroom where a Black defendant was to be tried. Judge Bernhard had previously removed the portraits that hung in the courtroom he usually presides in, but due to the COVID-19 pandemic, all jury trials are being held in the largest courtrooms, which are typically adorned with portraits of retired judges. Of the forty-seven portraits in the courtrooms, forty-five depict white jurists.
Bryan Kennedy, a senior assistant public defender in Fairfax County, Virginia, filed a “Motion to Remove Portraiture Overwhelmingly Depicting White Jurists Hanging in Trial Courtroom” on behalf of his client, Terrance Shipp, Jr. Mr. Kennedy was inspired to file this motion by the removal of a life-sized portrait of General Robert E. Lee from a circuit courtroom in Louisa, Virginia, three months prior. The portrait of General Lee had been hanging in the courtroom for over a century, but the attorneys for Darcel Murphy, an African-American defendant, argued that it “was originally chosen to intimidate Black citizens.” Similarly, Mr. Kennedy argued that the portraits in the Fairfax County Courthouse manifest a bias against non-white citizens by sending a message that Black and other non-white citizens are and will continue to be treated differently. The image of Judge Harry Carrico elicited specific concern because he had endorsed the State’s ban on interracial marriage in the 1966 hallmark case Loving v. Commonwealth, later known as Loving v. Virginia when it was argued before the Supreme Court of the United States the following year.
While not all of the judges whose portraits are displayed in the Fairfax County Courthouse necessarily held racist views, the scarcity of Black judges portrayed highlights the racial disparities in the judicial system as a whole. Only two portraits of Black judges appear in the courthouse, and the County has only had three Black judges in its history. In his opinion, Judge Bernhard wrote that the main issue in question was “whether in a justice system where criminal defendants are disproportionately of color and judges disproportionately white, it is appropriate for the symbols that ornament the hallowed courtrooms of justice to favor a particular race or color.” He further discussed how the portraits provide no context as to the character or history of the judges depicted, rather it is a “sea of white faces,” as characterized by Anthony Ray Hinton in his best-selling book, The Sun Does Shine: How I Found Life, Freedom, and Justice. Hinton described his experience in a Jefferson County, Alabama courtroom as being “an uninvited guest in a rich man’s library.”
We stand at a point in time where conversations about racial injustices are getting the attention and support that people have been fighting for. Judge Bernhard advised the court to consider how the portraits hanging in the courthouse could be perceived by non-white defendants. However, Mark Dycio, a Republican and a prominent defense attorney in Virginia, said that he believed that judges and juries were not affected by the décor of the courtrooms. Steve Knotts, the chairman of the Fairfax County GOP, did not support Judge Bernhard’s decision, either. He said that the Judge “seems to have embraced this reductive, racialist view of his fellow man,” and that “[a]s a culture, we must reject all divisive ideologies and, instead, unambiguously affirm our shared humanity.”
On the other hand, Judge Bernhard’s decision was praised by Mr. Kennedy and Steve Descano, the prosecuting attorney on the case, and it was supported by a growing number of judges across the country who have made similar considerations. Prior to this decision, on August 14, 2020, fifteen of Fairfax County’s current judges signed the “Initial Plan of Action to Address Systemic Racism and Enhance Civic Engagement With Our Community” following guidance from the Supreme Court of Virginia. This decision is in line with the goals of the Initial Plan. In North Carolina, a commission has been trying to figure out what to do with a “massive portrait of a judge who was an enslaver that hangs behind the bench where the state’s Supreme Court presides.” While Judge Bernhard’s decision was just a start for the movement, it is part of the larger conversation about racial inclusion in the criminal justice system, which continues to gain momentum. These conversations are important to ensure that all individuals are treated fairly and equally under the law.
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