David Bernhard

David Bernhard is a 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. He 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,[6] followed by a favorable vote by the Fairfax Bar Association membership.[7] Subsequently, state legislators of the Virginia General Assembly 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]

David Bernhard
Judge, Fairfax Circuit Court (19th Judicial Circuit of Virginia)
In office
July 1, 2017 - Present
Personal details
Born1962
San Salvador, El Salvador
Alma materWashington University School of Law (J.D.)

Early life

Bernhard was born in El Salvador in 1962 to parents of German-Jewish descent, before later seeking asylum in the United States.[11]

Education

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.[12] He is fluent in the English, Spanish and German languages.[6]

Career

Bernhard was first admitted to practice law in Maryland (1989), Virginia (1988), District of Columbia (1987), Missouri (1986).[6] From 1991 to 2017 he was in partnership with attorney Cheryl E. Gardner at the law firm of Bernhard & Gardner.[12] In 2005, Bernhard with Gardner,[13] co-founded and until May 2017 co-moderated VADefenses Listserv, a criminal law resource.[5]

Bernhard's trial practice included the handling of difficult cases such as a murder case which was only the second instance[14] of a jury trial being televised in the history of the Fairfax Circuit Court,[15] engendering debate as to the circumstances if any under which cameras ought to be allowed in a courtroom.[16] Notable matters he handled include 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 include Virginia's first civil Gideon case, a cooperative effort with Clarence M. Dunnaville Jr.,[21] culminating in amending legislation expanding the right to counsel;[22] the seminal 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.[5] In 2012 he was named a “Leader in the Law” by Virginia Lawyers Weekly.[25]

Judge David Bernhard, Fairfax Circuit Court, Virginia

As a judge, Bernhard has been an early proponent and implementer[26] of developing evidence-based sentencing[27] and pre-trial practices.[28] Similar techniques are already in use by the Virginia Department of Corrections for incarcerated individuals, helping yield the lowest inmate recidivism rate of any state.[29] 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.[30][31] Since assuming office, he has declined to impose discretionary cash or surety bond release conditions on those accused of crimes, persuaded by judicial training he received after his election[28] of the emerging view that such monetary requirements often amount to "wealth-based detention"[32][33][34] 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.[30] Subsequently, some prosecutors and most notably, the Governor and the Attorney General of Virginia, independently took the position that the cash bond must be reformed as a matter of practicality through a mixture of prosecutorial, judicial and legislative action.[35][36] Since 2017, Bernhard has 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 has set forth his reasoning for such practice in writing.[37] 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.[38] On August 14, 2020, Judge Bernhard joined his judicial colleagues in adopting a landmark plan to promote racial equity in the Fairfax Circuit Court.[39] Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions,[40][41] which in Virginia constitute persuasive authority.[42] Several of his opinions have led to affirmances by appellate courts.[43][44][45]

On March 2, 2020, Judge Bernhard was among six candidates from a wider initial candidate pool, interviewed by the Virginia General Assembly as a prerequisite for election to a vacancy on the Court of Appeals of Virginia.[46][47] Bernhard received top ratings from eight legal bar organizations, including rare unanimity in the vote of "Highly Qualified" from the Virginia State Bar Judicial Evaluation Committee tasked with vetting candidates for the General Assembly.[48][49][50] The Virginia Senate and House of Delegates failed to arrive at a consensus candidate,[51] leaving the selection to the 2021 session of the General Assembly.[52]

Notable opinions

Among Bernhard's notable judicial opinions are:[40] determining probation officers may make sentencing recommendations in their reports;[53] applying the writ of fieri facias to establish conversion; analyzing when attorneys' fees are applicable under the "hollow victory" concept;[54] justifying the exercise of the Court's discretion in voir dire to inform jurors of applicable penalty ranges to prevent sentencing bias and mistrials (now required by statute);[37][55] analyzing when words of a civilian may make such person a police agent effecting an arrest; evaluating whether a subcontractor in a commercial transaction may be subjected to liability under the Virginia Consumer Protection Act;[56][57] determining the reach of litigation sanctions to a "represented party" in application of the alter ego doctrine; holding when medical causation testimony is unnecessary to commit the decision as to guilt for a crime to a jury;[58] adopting a partial loan subordination approach for analyzing the impact of liens with a circuity of priority;[59] interpreting the scope of statutory preemption of negligence and conversion claims in the context of a fraudulent wire transfer of funds;[60] determining when declaratory judgment actions may be maintained ancillary to administrative adjudications;[61] finding a governor of a requesting state may act through an agent in extradition proceedings;[62] determining that in judicial proceedings to sell tax delinquent realty the liens against properties subject to sale must be determined by the time of entry of the decree of confirmation of sale;[63] holding a court could not vacate a previously granted nolle prosequi as such grant divested jurisdiction over the criminal offense charged;[64] ruling a grantor-beneficiary could encumber land with an easement in his individual capacity as a partial revocation of the transfer of such estate into a revocable trust;[65] delineating when a residential driveway is subject to prohibition of warrantless arrests thereon;[66] finding an implied-in-fact agreement erased support arrearages;[67] holding "challenger pays" attorneys' fees contract clauses are void as against public policy;[68] determining unlicensed noncommercial lenders are subject to the Virginia Consumer Protection Act,[69][70][71] delineating the standard applicable for judicial restoration of gun rights;[72] holding de bene esse depositions may be used in support of summary judgment,[73] determining exercise of reservations of spousal support do not require a showing of material change in circumstances (this default since changed by statute);[74] holding judicial waiver of jail time in the lower courts is binding in appeals de novo in the circuit courts as a matter of judicial estoppel;[75] finding indigent appellants in unlawful detainer cases could not be required to post bond by the lower courts as a prerequisite for transmitting their appeal to the circuit courts for trial de novo;[76] holding that a detainee in extradition proceedings is entitled to a limited mental health evaluation and restoration of capacity as a matter of due process;[77] delineating when a required probationary condition may be excused for inability to comply;[78] holding that an easement for "ingress and egress" to a body of water and for "use" of a sea wall does not confer riparian rights;[79] finding use of cash bail unconstitutional as-applied;[80][81][82] delineating the broad scope of the constitutional and statutory power of Commonwealth’s Attorneys to prosecute criminal offenses in Virginia;[83] granting a defense request to remove portraits of overwhelmingly white retired judges ornamenting the courtroom in which trial of an African American defendant was to take place, balancing the interests of those concerned in favor of affording a jury trial devoid of a symbolically skewed backdrop which could unintentionally and mistakenly impart African Americans are of lesser standing in the dispensing of justice.[84]

References
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