When a Black man appears in a Virginia courtroom this month to stand trial on charges of eluding the police, assaulting an officer and other crimes, he will face a scene that defendants in that room have not experienced in decades: The portraits of white judges will no longer line the walls.
A judge late last month ordered the removal of the portraits ahead of Terrance Shipp Jr.’s Jan. 4 trial, ruling that the presence of the artwork, depicting judges who served in Fairfax County, could have suggested that the legal system is biased. The judge, David Bernhard of the Fairfax Circuit Court, wrote in his Dec. 20 opinion that the court was concerned the portraits might “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. “The display of portraits of judges in courtrooms of the Fairfax Courthouse is based on a non-racial principle, yet yields a racial result,” he said.
The order was in response to a motion filed by Bryan Kennedy, a lawyer for Mr. Shipp. The idea, Mr. Kennedy said, came from both his client and a murder case in Louisa, Va., where a judge this year ordered a life-size portrait of the Confederate general Robert E. Lee removed from a circuit courtroom at the defendant’s request.
The decision underscores a year in which Virginia and the rest of the United States grappled with both implicit biases and overt images of white supremacy, leading to Confederate monuments and other symbols of racism being removed from public spaces.
It is not, however, the first time Judge Bernhard has made such a decision: The judge, who sought asylum to come to the United States from El Salvador in the 1970s, has not permitted portraits in his assigned courtroom since taking the bench in 2017. But because of the coronavirus pandemic, he and the other judges in the Fairfax County courthouse are working out of the building’s three largest courtrooms to allow for social distancing, and it is in one of those where Mr. Shipp will stand trial.
The paintings hanging in the Fairfax Circuit Court are similar to those found in courtrooms and other government offices around the country, often show retired judges who have served in that county’s history and and sometimes stretching as far back as the Confederacy.
Judges in Fairfax County have been weeding out other portraits for at least the past five years, Mr. Kennedy said. As new judges have taken the bench, they have removed portraits “of people that were clearly Confederates or slave owners,” he said, adding that the remaining portraits mostly represented judges from the modern era.
Of the 47 portraits left across the Fairfax Circuit Court, 45 show white judges, including a handful of white women. There are portraits of two of the only three Black judges to have served on the Fairfax Circuit Court bench: Judge Marcus D. Williams, the court’s first Black judge, who served from 1990 to his retirement in 2012, and Judge Gerald Bruce Lee, who served from 1992 and until 1998, when he became a Federal District Court judge. The third Black judge, Dontaè L. Bugg, was elected in 2019.
Among the portraits is one of Judge Harry L. Carrico of the Supreme Court of Virginia, who in 1966 wrote the court’s opinion in Loving v. Commonwealth, which upheld Virginia’s ban on interracial marriage. The law was overturned a year later.
Judge Bernhard noted that the portraits provide no context about their subjects and appear only as a “sea of portraits of white judges” to most members of the public, including juries. “The prevalence of portraits of white judges,” he said, “while not emblematic of racism on the part of the presiding judges, certainly highlights that until the more recent historical past, African Americans were not extended an encouraging hand to stand as judicial candidates.”
While the exact courtroom of Mr. Shipp’s upcoming trial was not yet known, Judge Bernhard’s decision will affect whatever space he occupies. “It’s more about the appearance of fairness now, than the actual monuments,” Mr. Kennedy said.
A lawyer for the prosecution did not return a request for comment, but Judge Bernhard said in his opinion that the prosecution did not oppose him granting the motion.
The chairman of the Fairfax County GOP objected to the decision.
“Judge Bernhard seems to have embraced this reductive, racialist view of his fellow man,” the chairman, Steve Knotts, said in a statement to The Washington Post. “We’d all do well to remember that, whether we are Black or White, Christian or Jewish, immigrant or native-born, we are all equally human. As a culture, we must reject all divisive ideologies and, instead, unambiguously affirm our shared humanity.”
Deborah Archer, a professor of law at New York University, said she had not previously heard of a judge taking such actions and emphasized that the ruling would not, on its own, ensure a Black defendant was going to get a fair trial.
Professor Archer said Judge Bernhard’s ruling was part of a larger conversation about inclusion and the ways in which systems in America can perpetuate inequality and send messages about who belongs in a space and who doesn’t.
Sherry Soanes, a lawyer and a former law clerk in the Fairfax Circuit Court, called Judge Bernhard’s decision a “no-brainer,” adding that the move was a “step in the right direction.”
While Ms. Soanes said she hoped the decision would lead other judges to take action, she was also emphatic that it wasn’t “putting racism in the closet.”
“It’s a step to thinking about how is racism at play,” she said. “That is the question that I want judges across Virginia and across the country to ask themselves.”
Not everyone supports Judge Bernhard’s decision, said Vernida Chaney, a criminal defense lawyer who has appeared before Judge Bernhard in Fairfax Circuit Court. But progress in the way courts view race and implicit bias is being made across Virginia.
“This is not a museum, it is a place where we go to have justice rendered,” Ms. Chaney said.
Public statues and other commemorations have been the subject of much debate in recent years and became the target of renewed protests against racism and police violence across the United States after the killing of George Floyd in police custody in May.
Virginia, in particular, has been grappling with images of white supremacy this year.
A Confederate statue in Charlottesville, Va., near the site of a violent white supremacist rally in 2017, was removed in September after 111 years. In Richmond, near the state Capitol, one by one the Confederate statues along the city’s Monument Avenue were taken down. Another statue of Lee in Richmond has been ordered removed and has in the meantime become the site of an unlikely community space.