David Bernhard | |
---|---|
Judge of the 19th Judicial Circuit Court of Virginia (Fairfax) | |
Assumed office July 1, 2017 | |
Appointed by | Virginia General Assembly |
Judge-elect of the Court of Appeals of Virginia (starting 1/1/2025) | |
Personal details | |
Born | San Salvador,El Salvador |
Education | Washington University School of Law (JD) |
David Bernhard is a trial judge of the 19th Judicial Circuit Court of Virginia (Fairfax),in the United States,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 only the second immigrant, [3] and the first one from Latin America,to have been elected Circuit Court Judge in Virginia. [4] His election was preceded by an evaluation by the Fairfax Bar Judicial Selection Committee [5] which issued an executive summary highly recommending his candidacy,noting his "prominence in the legal profession" and "impressive record of service,legal curiosity,and demeanor," [6] followed by a favorable vote by the Fairfax Bar Association membership. [7] Subsequently,bipartisan state legislators of the Virginia General Assembly then having precincts in Fairfax County, [8] voted as later reported in committee,to unanimously recommend his approval to the full legislature. [9] Bernhard was sworn into office on June 30,2017. [10]
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 any Virginia appellate court. [11] [12] [13] [14]
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. [15]
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. [5] He completed his J.D. degree in 1985 at Washington University School of Law,in St. Louis,Missouri. [16] He is fluent in the English,Spanish and German languages. [6]
David Bernhard was admitted to practice law in Maryland in 1989,Virginia in 1988,the District of Columbia in 1987,Missouri in 1986. [6] From 1991 to 2017 he was in partnership with attorney Cheryl Gardner at the law firm of Bernhard &Gardner. [16] In 2005,Bernhard with Gardner [17] 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. [5] [6]
Bernhard's trial practice included the handling of difficult cases such as a murder case [18] which was only the second instance [19] of a jury trial being televised in the history of the Fairfax Circuit Court, [20] engendering debate as to the circumstances if any under which cameras ought to be allowed in a courtroom. [21] Notable matters he and Cheryl Gardner handled included challenging admissibility of certificates of analysis offered without the presence of a technician in DUI prosecutions, [22] and confronting problems with enforcement of Northern Virginia toll road civil penalty cases, [23] in each case contributing to the enactment of changes to the Code of Virginia. [24] [25] His appeals,which involved collaboration with Gardner,include Virginia's first civil Gideon case,a cooperative effort with Clarence M. Dunnaville Jr., [26] culminating in amending legislation expanding the right to counsel; [27] the seminal Benitez decision policing abusive litigation practices; [28] 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." [29] 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. [5] A legal innovator,in 2012 he was named a “Leader in the Law”by Virginia Lawyers Weekly. [30]
In a two-part podcast interview,Bernhard detailed his improbable journey to becoming a Fairfax Circuit Court trial judge, [31] and what it is like to serve in such role. [32]
Upon assuming office he was an early proponent and implementer [33] of developing evidence-based sentencing [34] and pre-trial practices. [35] Similar techniques are already in use by the Virginia Department of Corrections for incarcerated individuals,helping yield by 2019,the lowest inmate recidivism rate of any state. [36] 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. [37] [38] He has declined to impose discretionary cash or surety bond release conditions on those accused of crimes,persuaded by judicial training he received under auspices of the Supreme Court of Virginia after his election [35] of the emerging view that such monetary requirements often amount to "wealth-based detention" [39] [40] [41] and do little to ensure public safety in the case of the dangerous,while conversely serving in many instances to unnecessarily incarcerate those whose release poses little adverse risk that can instead be addressed through other pretrial terms. [42] He has pointed to examples where the dangerous were released merely because they had money,while individuals charged with misdemeanor offenses where they normally would not serve a jail sentence were unnecessarily detained merely for being poor,finding there is no rational means for the implementation of cash terms in bail determinations. [37] [43] 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. [44] 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. [45]
On August 14,2020,Judge Bernhard joined his 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. [46]
During 2020-22 he was among the finalists considered for election to the Court of Appeals and Supreme Court of Virginia,receiving laudatory evaluations from a number of Bar organizations. [47] [48] [49] Respecting 2024 vacancies on the Court of Appeals of Virginia,Bernhard was again highly rated by a number of Bar organizations,the Virginia State Bar reiterating its background investigation,noting "exemplary feedback" for Bernhard,with sources describing him as "a spectacular judge and well-respected practitioner." [50] On March 7,2024,the Virginia General Assembly made history with the Democratic majority voting favorably in the Virginia Senate, [51] [12] and a bipartisan near-unanimous favorable vote in the Virginia House of Delegates, [52] [11] 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 any Virginia appellate court. [13] [14] As of 2020,Virginia's population was 10.6% Hispanic, [53] and by 2021,12.3% foreign-born,with a further 6.7% with at least one immigrant parent,encompassing a work force which is 15.6% immigrant and contributing $14.6 billion in annual taxes. [54]
Judge Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions, [55] [56] which in Virginia constitute persuasive authority. [57]
Judge 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: [55] [58]
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