David Bernhard Explained

David Bernhard
Office:Judge of the 19th Judicial Circuit Court of Virginia (Fairfax)
Appointer:Virginia General Assembly
Term Start:July 1, 2017
Office2:Judge-elect of the Court of Appeals of Virginia (starting 1/1/2025)
Education:Washington University School of Law (JD)
Birth Place:San Salvador, El Salvador

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

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.

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.[10] He completed his J.D. degree in 1985 at Washington University School of Law, in St. Louis, Missouri.[11] He is fluent in the English, Spanish and German languages.[12]

Career

Bernhard was admitted to practice law in Maryland in 1989, Virginia in 1988, the District of Columbia in 1987, Missouri in 1986. From 1991 to 2017 he was in partnership with attorney Cheryl Gardner at the law firm of Bernhard & Gardner. In 2005, Bernhard with Gardner[13] 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.

Bernhard's trial practice included the handling of a murder case which was the second instance[14] of a jury trial being televised in the Fairfax Circuit Court,[15] engendering debate as to the circumstances under which cameras ought to be allowed in a courtroom.[16] Notable matters he and Cheryl Gardner handled included challenging admissibility of certificates of analysis offered without the presence of a technician in DUI prosecutions,[17] and confronting problems with enforcement of Northern Virginia toll road civil penalty cases,[18] in each case contributing to the enactment of changes to the Code of Virginia.[19] [20] His appeals, which involved collaboration with Gardner, include Virginia's first civil Gideon case, a cooperative effort with Clarence Dunnaville,[21] culminating in amending legislation expanding the right to counsel;[22] the Benitez decision policing abusive litigation practices;[23] 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."[24] 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. In 2012 he was named a “Leader in the Law” by Virginia Lawyers Weekly.[25]

Judicial career

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

Upon assuming office he was an early proponent and implementer[26] of developing evidence-based sentencing[27] and pre-trial practices.[28] 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.[29] [30] He has declined to impose discretionary cash or surety bond release conditions on those accused of crimes, arguing that such monetary requirements often amount to "wealth-based detention"[31] [32] [33] 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. 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.[34] 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.[35]

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.[36]

Election to the Court of Appeals

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.[37] [38] [39] [40]

On March 7, 2024, the Virginia General Assembly's Democratic majority voted favorably in the Virginia Senate,[41] and there was a bipartisan favorable vote in the Virginia House of Delegates,[42] 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.

Notable opinions

Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions,[43] [44] which in Virginia constitute persuasive authority.[45] 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:

External links

Notes and References

  1. Web site: Senate Resolution No. 158 - February 23, 2017. lis.virginia.gov. 2018-01-12. 2017-04-28. https://web.archive.org/web/20170428051526/https://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+SR158ER+hil. live.
  2. Web site: House Resolution No. 453 - February 23, 2017. lis.virginia.gov. 2018-01-12. 2017-04-24. https://web.archive.org/web/20170424003244/http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+HR453+hil. live.
  3. News: John Tran, First Asian-American Immigrant Circuit Court Judge in Virginia. 2013-04-05. Washington Post. 2019-06-30. 2019-06-30. https://web.archive.org/web/20190630155512/https://www.washingtonpost.com/blogs/the-state-of-nova/post/mcleans-john-tran-named-first-asian-american-judge-in-virginia-history-to-join-fairfax-bench/2013/04/04/d9863634-9d68-11e2-a2db-efc5298a95e1_blog.html. live.
  4. News: He once sought asylum in the United States. Now, he's been named a judge.. Jouvenal. Justin. 2017-02-27. Washington Post. 2017-12-19. en-US. 0190-8286. 2018-01-04. https://web.archive.org/web/20180104201656/https://www.washingtonpost.com/local/public-safety/he-once-sought-asylum-in-the-united-states-now-he-has-been-named-a-judge/2017/02/27/275b0b90-fad1-11e6-9845-576c69081518_story.html. live.
  5. Web site: Fairfax Circuit Court Judges . usurped . https://web.archive.org/web/20180825140548/https://www.fairfaxcounty.gov/circuit/judges . 2018-08-25 . 2017-12-19 . www.fairfaxcounty.gov . en.
  6. Web site: House Resolution 342 - March 6, 2024 . live . https://web.archive.org/web/20240309212315/https://lis.virginia.gov/cgi-bin/legp604.exe?241+ful+HR342 . 2024-03-09 . 2024-03-08 . lis.virginia.gov.
  7. Web site: Senate Resolution 134 - March 6, 2024 . live . https://web.archive.org/web/20240309043659/https://lis.virginia.gov/cgi-bin/legp604.exe?241+ful+SR134 . 2024-03-09 . 2024-03-09 . lis.virginia.gov.
  8. Web site: Michelle Lopes Maldonado on LinkedIn (Chair, Courts of Justice Judicial Subcommittee, Virginia House of Delegates) . live . https://web.archive.org/web/20240317114333/https://www.linkedin.com/feed/update/urn:li:activity:7172270907212697600?updateEntityUrn=urn%3Ali%3Afs_feedUpdate%3A%28V2%2Curn%3Ali%3Aactivity%3A7172270907212697600%29 . 2024-03-17 . 2024-03-17 . www.linkedin.com . en.
  9. Web site: Boleman . Jason . 2024-03-17 . General Assembly taps circuit court judges for Court of Appeals Virginia Lawyers Weekly . live . https://web.archive.org/web/20240317204001/https://valawyersweekly.com/2024/03/17/general-assembly-taps-circuit-court-judges-for-court-of-appeals/ . 2024-03-17 . 2024-03-17 . en-US.
  10. Web site: Judicial Screening Fall 2016 - Fairfax Bar Association. 2017-04-25. fairfaxbar.org. 2018-11-11. https://web.archive.org/web/20181111043820/https://www.fairfaxbar.org/page/JS_Fall2016CC. live.
  11. Web site: Fall 2013 . Firm Spotlight - Washington University Law Magazine (page 44-45) . bot: unknown . https://web.archive.org/web/20180908092809if_/http://law.wustl.edu/magazine/Fall2013/LawMagazineFall13.pdf . 2018-09-08 . 2018-01-12 . law.wustl.edu.
  12. Web site: Executive Summary: October 2016 Fairfax Circuit Court Judicial Screening. cdn.ymaws.com. 2020-05-24. 2022-12-25. https://web.archive.org/web/20221225213524/https://cdn.ymaws.com/sites/fairfaxbar.site-ym.com/resource/resmgr/judicial_screening/Bernhard-ES2016.pdf. live.
  13. Web site: This tool can help reduce the incarceration rate in Virginia. Too bad it's underused.. 2019-06-14. Washington post.com. 2019-07-05. 2019-06-29. https://web.archive.org/web/20190629125118/https://www.washingtonpost.com/opinions/local-opinions/this-tool-can-help-reduce-the-incarceration-rate-in-virginia-too-bad-its-underused/2019/06/14/2c2e19c0-7e62-11e9-a5b3-34f3edf1351e_story.html. live.
  14. News: Fairfax judge allows cameras in a trial for the first time since 1994, and that's a good thing. Jackman. Tom. 2013-07-29. Washington Post. en-US. 2017-12-19. 2018-08-28. https://web.archive.org/web/20180828184240/https://www.washingtonpost.com/blogs/local/wp/2013/07/29/fairfax-county-judge-allows-cameras-in-a-trial-for-the-first-time-and-thats-a-good-thing/. live.
  15. News: In Fairfax, cameras in the Pham murder trial: Not intrusive, but did they affect the sentence?. Jackman. Tom. 2013-08-29. Washington Post. en-US. 2017-12-19. 2017-05-19. https://web.archive.org/web/20170519020727/https://www.washingtonpost.com/blogs/local/wp/2013/08/29/in-fairfax-cameras-in-the-pham-murder-trial-not-intrusive-but-did-they-affect-the-sentence/. live.
  16. News: Getting used to cameras in Virginia courtrooms. Bernhard. David. 2014-11-28. Washington Post. 2017-12-19. en-US. 0190-8286. 2017-12-22. https://web.archive.org/web/20171222052912/https://www.washingtonpost.com/opinions/getting-used-to-cameras-in-virginia-courtrooms/2014/11/28/fde30130-74ba-11e4-a755-e32227229e7b_story.html. live.
  17. News: High Court Ruling Voids Va. DWI Case Over Lack of Breathalyzer Testimony. Jackman. Tom. . 2009-07-18. 2017-12-19. en-US. 0190-8286. 2017-04-26. https://web.archive.org/web/20170426153409/http://www.washingtonpost.com/wp-dyn/content/article/2009/07/17/AR2009071703478.html. live.
  18. Web site: 2015-01-05 . Defense attorney unveils strategy to challenge huge E-ZPass Express Lane fines - Story | WTTG . live . https://web.archive.org/web/20170424174555/http://www.fox5dc.com/news/1448817-story . 2017-04-24 . 2017-04-25 . Fox5dc.com.
  19. Web site: Bill Tracking - 2009 session > Legislation. lis.virginia.gov. 2017-05-12. 2017-12-22. https://web.archive.org/web/20171222050849/http://lis.virginia.gov/cgi-bin/legp604.exe?092+ful+CHAP0001. live.
  20. Web site: Bill Tracking - 2016 session > Legislation. lis.virginia.gov. 2017-05-12. 2017-12-22. https://web.archive.org/web/20171222052336/http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0753. live.
  21. Web site: The Ways of a Gentle Warrior. Capsalis. Manuel A.. February 2009. vsb.org. 2018-01-12. 2020-07-31. https://web.archive.org/web/20200731201957/https://www.vsb.org/docs/valawyermagazine/vl0209_president.pdf. live.
  22. Web site: Bill Tracking - 2012 session > Legislation . Lis.virginia.gov . 2012-03-30 . 2017-04-25 . 2017-04-24 . https://web.archive.org/web/20170424003903/http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+CHAP0425 . live .
  23. Web site: Ford Motor Company v. Benitez | Findlaw. 2007-01-12. Caselaw.findlaw.com. 2017-04-25. 2017-04-24. https://web.archive.org/web/20170424091442/http://caselaw.findlaw.com/va-supreme-court/1467399.html. live.
  24. Web site: Kim v. Commonwealth | Findlaw. 2017-04-13. Caselaw.findlaw.com. 2017-04-25. 2017-04-24. https://web.archive.org/web/20170424090430/http://caselaw.findlaw.com/va-supreme-court/1856589.html. live.
  25. News: 2012-08-15 . Presenting the 'Leaders in the Law' Class of 2012 . live . https://web.archive.org/web/20170518235725/http://valawyersweekly.com/2012/08/15/presenting-the-leaders-in-the-law-class-of-2012/ . 2017-05-18 . 2017-12-19 . Virginia Lawyers Weekly . en-US.
  26. Web site: Evidence Based Sentencing Practices CLE. www.fairfaxbar.org. 2018-01-24. 2022-12-26. https://web.archive.org/web/20221226023409/https://www.fairfaxbar.org/events/EventDetails.aspx?id=1063208&group=. live.
  27. Web site: Using Evidence-based Practices in Sentencing Criminal Offenders . 2012-07-03. knowledgecenter.csg.org. en. 2017-12-24. 2017-12-25. https://web.archive.org/web/20171225091846/http://knowledgecenter.csg.org/kc/content/using-evidence-based-practices-sentencing-criminal-offenders. live.
  28. Web site: The New Norm for Pretrial Justice in Virginia. Rose. Kenneth. December 2013. www.dcjs.virginia.gov. 2018-01-12. 2018-02-09. https://web.archive.org/web/20180209191048/https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/publications/corrections/new-norm-pretrial-justice-commonwealth-virginia.pdf. live.
  29. News: A judge appears to be the first in Northern Virginia to drop cash bonds. Jouvenal. Justin. 2018-06-14. Washington Post. 2018-06-15. en-US. 0190-8286. 2018-06-15. https://web.archive.org/web/20180615032309/https://www.washingtonpost.com/local/public-safety/a-judge-appears-to-be-the-first-in-northern-virginia-to-drop-cash-bonds/2018/06/14/848d9a4c-5ea0-11e8-b2b8-08a538d9dbd6_story.html. live.
  30. News: While Virginia studies cash bail alternatives, local prosecutors and judges increasingly take reform into their own hands - Virginia Mercury. 2018-11-26. Virginia Mercury. 2018-12-01. en-US. 2018-12-01. https://web.archive.org/web/20181201093108/https://www.virginiamercury.com/2018/11/26/while-virginia-studies-cash-bail-alternatives-local-prosecutors-and-judges-increasingly-take-reform-into-their-own-hands/. live.
  31. News: Federal judge on landmark Harris County bail suit implements revisions to policy. Houston Chronicle. 2018-07-01. 2018-06-30. https://web.archive.org/web/20180630053318/https://www.chron.com/news/houston-texas/houston/article/Federal-judge-on-landmark-Harris-County-bail-suit-13038920.php. live.
  32. News: The argument over bail. Vieth. Peter. 2018-07-09. Virginia Lawyers Weekly. 2018-07-09. en-US. 2018-07-10. https://web.archive.org/web/20180710041004/https://valawyersweekly.com/2018/07/09/the-argument-over-bail/. live.
  33. Web site: The argument over bail. - Free Online Library. www.thefreelibrary.com. 2018-11-18. 2018-11-18. https://web.archive.org/web/20181118205808/https://www.thefreelibrary.com/The%20argument%20over%20bail.-a0546364597. live.
  34. Web site: 2017-09-28 . Commonwealth v. Hockett Barela - MI-2017-4 . live . https://web.archive.org/web/20180825160252/https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/mi-2017-4-commonwealth-v-hockett-barela.pdf . 2018-08-25 . 2018-01-12 . fairfaxcounty.gov.
  35. Web site: HB100 Bill Tracking - 2020 session > Legislation. lis.virginia.gov. 2020-04-18. 2020-10-20. https://web.archive.org/web/20201020053038/https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0157. live.
  36. Web site: Fairfax Circuit Court Initial Plan of Action to Address Systemic Racism And Enhance Civic Engagement With Our Community, adopted August 14, 2020.. live. https://web.archive.org/web/20201226025724/https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/fairfax-cir-ct-plan-address-racism-enhance-civic-engagement.pdf . 2020-12-26 . 2020-08-22. fairfaxcounty.gov. en.
  37. Web site: 2020-02-19 . File:Judge David Bernhard - Virginia State Bar (VSB) Unanimous Evaluation for CAV - Highly Qualified.pdf - Wikimedia Commons . live . https://web.archive.org/web/20240616012050/https://commons.m.wikimedia.org/wiki/File:Judge_David_Bernhard_-_Virginia_State_Bar_(VSB)_Unanimous_Evaluation_for_CAV_-_Highly_Qualified.pdf . 2024-06-16 . 2024-06-16 . commons.wikimedia.org . en.
  38. Web site: Vieth . Peter . 2021-02-08 . VSB ranks candidates for Appeals Court seats . live . https://web.archive.org/web/20210220110904/https://valawyersweekly.com/2021/02/08/11-highly-qualified-8-qualified-vsb-ranks-candidates-for-appeals-court-seats/ . 2021-02-20 . 2023-10-18 . Virginia Lawyers Weekly . en-US.
  39. Web site: VWAA Supreme Court Judicial Evaluations - 2/18/2021 . live . https://web.archive.org/web/20210225154420/https://www.vwaa.org/assets/components/pdfs/judiciary/2021/02.18.21%20-%20Virginia%20Court%20of%20Appeals.pdf . 2021-02-25 . 2023-10-18.
  40. Web site: Schapiro . Jeff E. . 2022-03-02 . Schapiro: Jury's out on whether lawmakers can agree on judges . https://web.archive.org/web/20220302222358/https://richmond.com/news/state-and-regional/govt-and-politics/schapiro-jurys-out-on-whether-lawmakers-can-agree-on-judges/article_476cfedb-b7b7-51b1-b983-09c7ca968a0a.html . 2022-03-02 . 2023-10-18 . Richmond Times-Dispatch . en.
  41. Web site: LIS > Bill Tracking > SR134 > 2024 session . 2024-04-20 . lis.virginia.gov.
  42. Web site: LIS > Bill Tracking > HR342 > 2024 session . 2024-04-20 . lis.virginia.gov.
  43. Web site: Letter Opinions . 2019-05-04 . fairfaxcounty.gov.
  44. Web site: Judge David Bernhard – Virginia Lawyers Weekly. en-US. 2020-04-25. 2020-08-17. https://web.archive.org/web/20200817233805/https://valawyersweekly.com/tag/judge-david-bernhard/. live.
  45. Web site: Ullian . Jeanne . 2008 . Feeling Short Circuited? Assessing the Availability of Circuit Court Opinions . deviated . https://web.archive.org/web/20220602050741if_/https://www.vsb.org/docs/valawyermagazine/vl0708_circuit-op.pdf . 2022-06-02 . 2017-12-24 . vsb.org.
  46. Web site: 2018-10-28 . 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) . live . https://web.archive.org/web/20220523121215/https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/cl-2018-6258-cw-v-nc-financial-solutions-of-utah-llc.pdf . 2022-05-23 . 2023-04-01 . fairfaxcounty.gov.
  47. News: Judge denies online lender's request to dismiss Virginia lawsuit over interest rates. Ress. Dave. dailypress.com. 2018-11-12. en-US. 2018-11-13. https://web.archive.org/web/20181113031518/https://www.dailypress.com/news/virginia/dp-nw-net-credit-lending-lawsuit-1103-story.html. live.
  48. News: Venue is appropriate for Attorney General's suit. 2018-11-12. Virginia Lawyers Weekly. 2018-11-12. en-US. 2018-11-12. https://web.archive.org/web/20181112223439/https://valawyersweekly.com/2018/11/11/venue-is-appropriate-for-attorney-generals-suit/. live.
  49. News: Circuits split on lenders' loophole. Vieth. Peter. 2018-11-19. Virginia Lawyers Weekly. 2018-11-19. en-US. 2018-11-19. https://web.archive.org/web/20181119214552/https://valawyersweekly.com/2018/11/19/circuits-split-on-lenders-loophole/. live.
  50. Web site: Oliver. Ned. Fairfax judge rules cash bond unconstitutional. 2020-11-14. Virginia Mercury. en-US. 2020-11-17. https://web.archive.org/web/20201117012914/https://www.virginiamercury.com/blog-va/in-rare-opinion-on-cash-bond-fairfax-judge-rules-it-unconstitutional/. live.
  51. Web site: 2020-11-20. Bond for DWI suspect was unconstitutional. 2020-11-21. Virginia Lawyers Weekly. en-US. 2020-11-29. https://web.archive.org/web/20201129043033/https://valawyersweekly.com/2020/11/20/bond-for-dwi-suspect-was-unconstitutional/. live.
  52. Web site: Vieth. Peter. 2020-11-23. Fairfax judge: Bail was unconstitutional for indigent defendant. 2020-11-23. Virginia Lawyers Weekly. en-US. 2020-12-20. https://web.archive.org/web/20201220070356/https://valawyersweekly.com/2020/11/23/a-blow-to-wealth-based-detention-fairfax-judge-bail-was-unconstitutional-for-indigent-defendant/. live.
  53. Web site: 2020-11-06 . Com. v. Corey Hunter . live . https://web.archive.org/web/20230302023420/https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/km-2020-441-cw-v-corey-hunter.pdf . 2023-03-02 . 2023-03-01 . fairfaxcounty.gov.
  54. News: Editorial Board. Opinion A Virginia judge reconsiders the portraits of judges — virtually all White — lining his courtroom walls. en-US. Washington Post. 2021-01-09. 0190-8286. 2021-01-12. https://web.archive.org/web/20210112071441/https://www.washingtonpost.com/opinions/david-bernhard-fairfax-court-judge-portraits/2020/12/23/c88d1578-4495-11eb-b0e4-0f182923a025_story.html. live.
  55. Miller . Lauren . 2022-04-01 . 'A Sea of White Faces': How Courtroom Portraits Undermine Justice in Virginia . live . Undergraduate Honors Theses . https://web.archive.org/web/20220702054544/https://scholarworks.wm.edu/honorstheses/1784/ . 2022-07-02 . 2023-04-12.
  56. Web site: 2020-12-20 . Com. v. Terrance Shipp, Jr. . live . https://web.archive.org/web/20230302024530if_/https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/fe-2020-8-cw-v-terrance-shipp-jr.pdf . 2023-03-02 . 2023-03-01 . fairfaxcounty.gov.

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