David Bernhard in 2012

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]

Early years and education

Bernhard was born in El Salvador and later sought asylum in the United States due to family endangerment from leftist guerrillas.[11]

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[14] which was only the second instance[15] of a jury trial being televised in the history of the Fairfax Circuit Court,[16] engendering debate as to the circumstances if any under which cameras ought to be allowed in a courtroom.[17] Notable matters he handled include challenging admissibility of certificates of analysis offered without the presence of a technician in DUI prosecutions [18] and confronting problems with enforcement of Northern Virginia toll road civil penalty cases,[19] in each case contributing to the enactment of changes to the Code of Virginia.[20][21] His appeals include Virginia's first civil Gideon case, a cooperative effort with Clarence M. Dunnaville Jr.,[22] culminating in amending legislation expanding the right to counsel;[23] the seminal Benitez decísion policing abusive litigation practices;[24] 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."[25] 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.[26]

Bernhard has spoken about his improbable journey to becoming a judge[27] and what it is like to serve as a judge.[28] Upon assuming office he was an early proponent and implementer[29] of developing evidence-based sentencing[30] and pre-trial practices.[31] 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.[32] 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.[33][34] 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[31] of the emerging view that such monetary requirements often amount to "wealth-based detention"[35][36][37] 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.[38] He has pointed to examples where the dangerous have been released merely because they have money, while individuals charged with misdemeanor offenses where they normally would not serve a jail sentence have been unnecessarily detained merely for being poor, finding there is no rational means for the implementation of cash terms in bail determinations.[33][39] 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.[40] 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.[41] On August 14, 2020, Judge Bernhard joined his judicial colleagues in adopting a landmark plan to promote racial equality and public confidence in the fairness of the Fairfax Circuit Court.[42] 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 Bar organizations.[43][44][45][46] Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions,[47][48] which in Virginia constitute persuasive authority.[49]

Notable opinions

Among Bernhard's notable judicial opinions are:[47][50] determining probation officers may make sentencing recommendations in their reports;[51][52] 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);[53][40] evaluating whether a subcontractor in a commercial transaction may be subjected to liability under the Virginia Consumer Protection Act;[54][55] holding when medical causation testimony is unnecessary to commit the decision as to guilt for a crime to a jury;[56] adopting a partial loan subordination approach for analyzing the impact of liens with a circuity of priority;[57][58] interpreting the scope of statutory preemption of negligence and conversion claims in the context of a fraudulent wire transfer of funds;[59] determining when declaratory judgment actions may be maintained ancillary to administrative adjudications;[60] finding a governor of a requesting state may act through an agent in extradition proceedings;[61] 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;[62] holding a court could not vacate a nolle prosequi granted after trial commenced as such grant divested jurisdiction over the criminal offense charged;[63] 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;[64] delineating when a residential driveway is subject to prohibition of warrantless arrests thereon;[65] finding an implied-in-fact agreement erased support arrearages;[66][67] holding "challenger pays" attorneys' fees contract clauses are void as against public policy;[68] analyzing and rejecting application of the rule of the last antecedent,[69] and determining unlicensed noncommercial Lenders are subject to the Virginia Consumer Protection Act;[70][71][72] delineating the standard and framework applicable for judicial restoration of gun rights;[73][74] holding that a petition to change the name of a child is bookended by considerations that the Court should not by grant of a name change diminish any significant existing ties between the child and the parents whose last name she carries, while, conversely, the child should not be subjected to substantial embarrassment or distress, product of maintaining the surname sought to be changed or supplemented;[75][76] analyzing when the courts are divested of jurisdiction to determine child custody pertaining to a child who is no longer present in Virginia;[77][78] finding de bene esse depositions may be used in support of summary judgment;[79] determining exercise of reservations of spousal support do not require a showing of material change in circumstances (prompting change by statute);[80] 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;[81] 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;[82][83] 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;[84] delineating when a required probationary condition may be excused for inability to comply;[85] 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;[86] finding use of cash bail unconstitutional as-applied;[87][88][89][38] delineating the broad scope of the constitutional and statutory power of Commonwealth's Attorneys to prosecute criminal offenses in Virginia;[90] granting a defense request as a matter of judicial discretion promoting courtroom neutrality, to conduct a jury trial devoid of a symbolically skewed backdrop of portraits that favor any race, which could unintentionally and mistakenly impart African Americans are of lesser standing in the dispensing of justice;[91][92][93] holding that affirmative defenses adjudicated by plea in bar are not to be revisited anew at trial in most instances,[94] detailing when spreading bamboo becomes an actionable nuisance and that the statute of limitations does not apply when relief sought is entirely equitable;[95][96] delineating when "romantic partner" clauses are void as against public policy;[97][98] determining a sole proprietor is not an "employee" under the workers' compensation law;[99] holding the court has the discretion to permit a defendant to retract a request for jury sentencing;[100][101] finding the Court may not modify an unserved jail sentence if it was imposed in revocation of a suspended sentence and delineating in detailed analysis of the concept of jurisdiction when an order entered in error is void ab initio as opposed to merely voidable;[102][103] holding that the filing of lis pendens may may not serve as the legal basis for the tort of malicious abuse of process;[104][105] detailing a framework for analyzing when a criminal charge that was amended can be deemed "otherwise dismissed" and expungable;[106][107] finding notice to the defendant of the institution of the action within the period afforded by the statute of limitations is still required when curing a misnomer by nonsuit, which notice may be satisfied by timely knowledge possessed by the defendant’s insurer under the doctrine of identity of interest;[108] holding that the preference of a child alone, when the facts prevalent at the time of the custodial order sought to be modified have not changed, is insufficient to establish a material change in circumstances to enable the jurisdiction of the Court to modify the order.[109][110]

References

  1. ↑ "Senate Resolution No. 158 - February 23, 2017". lis.virginia.gov. Archived from the original on 2017-04-28. Retrieved 2018-01-12.
  2. ↑ "House Resolution No. 453 - February 23, 2017". lis.virginia.gov. Archived from the original on 2017-04-24. Retrieved 2018-01-12.
  3. ↑ "John Tran, First Asian-American Immigrant Circuit Court Judge in Virginia". Washington Post. 2013-04-05. Archived from the original on 2019-06-30. Retrieved 2019-06-30.
  4. ↑ Jouvenal, Justin (2017-02-27). "He once sought asylum in the United States. Now, he's been named a judge". Washington Post. ISSN 0190-8286. Archived from the original on 2018-01-04. Retrieved 2017-12-19.
  5. 1 2 3 4 "Judicial Screening Fall 2016 - Fairfax Bar Association". fairfaxbar.org. Archived from the original on 2018-11-11. Retrieved 2017-04-25.
  6. 1 2 3 "Executive Summary: October 2016 Fairfax Circuit Court Judicial Screening" (PDF). cdn.ymaws.com. Archived (PDF) from the original on 2022-12-25. Retrieved 2020-05-24.
  7. ↑ "Circuit Court Judicial Screening Membership Vote (Fall 2016) - Fairfax Bar Association". fairfaxbar.org. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  8. ↑ "Fairfax County Directory of Elected Officials" (PDF). www.fairfaxcounty.gov. Archived (PDF) from the original on 2018-08-25. Retrieved 2018-01-12.
  9. ↑ Vieth, Peter (2016-11-28). "Legislators anoint Fairfax judge candidates". Virginia Lawyers Weekly. Archived from the original on 2017-12-06. Retrieved 2017-12-19.
  10. ↑ "Fairfax Circuit Court Judges". www.fairfaxcounty.gov. Archived from the original on 2018-08-25. Retrieved 2017-12-19.
  11. ↑ Jouvenal, Justin (2017-02-27). "He once sought asylum in the United States. Now, he's been named a judge". Washington Post. ISSN 0190-8286. Archived from the original on 2021-01-04. Retrieved 2022-07-10.
  12. 1 2 "Firm Spotlight - Washington University Law Magazine (page 44-45)" (PDF). law.wustl.edu. Fall 2013. Archived from the original on 2018-09-08. Retrieved 2018-01-12.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  13. ↑ "This tool can help reduce the incarceration rate in Virginia. Too bad it's underused". Washington post.com. 2019-06-14. Archived from the original on 2019-06-29. Retrieved 2019-07-05.
  14. ↑ Jury deliberating in Vanessa Pham murder trial, retrieved 2023-09-22
  15. ↑ Jackman, Tom (2013-07-29). "Fairfax judge allows cameras in a trial for the first time since 1994, and that's a good thing". Washington Post. Archived from the original on 2018-08-28. Retrieved 2017-12-19.
  16. ↑ Jackman, Tom (2013-08-29). "In Fairfax, cameras in the Pham murder trial: Not intrusive, but did they affect the sentence?". Washington Post. Archived from the original on 2017-05-19. Retrieved 2017-12-19.
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  18. ↑ Jackman, Tom (2009-07-18). "High Court Ruling Voids Va. DWI Case Over Lack of Breathalyzer Testimony". The Washington Post. ISSN 0190-8286. Archived from the original on 2017-04-26. Retrieved 2017-12-19.
  19. ↑ "Defense attorney unveils strategy to challenge huge E-ZPass Express Lane fines - Story | WTTG". Fox5dc.com. 2015-01-05. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
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  22. ↑ Capsalis, Manuel A. (February 2009). "The Ways of a Gentle Warrior" (PDF). vsb.org. Archived (PDF) from the original on 2020-07-31. Retrieved 2018-01-12.
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  24. ↑ "Ford Motor Company v. Benitez | Findlaw". Caselaw.findlaw.com. 2007-01-12. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  25. ↑ "Kim v. Commonwealth | Findlaw". Caselaw.findlaw.com. 2017-04-13. Archived from the original on 2017-04-24. Retrieved 2017-04-25.
  26. ↑ "Presenting the 'Leaders in the Law' Class of 2012". Virginia Lawyers Weekly. 2012-08-15. Archived from the original on 2017-05-18. Retrieved 2017-12-19.
  27. ↑ Episode 53: Journey To Judgeship - Crime Time: With Virginia Defense Attorneys, archived from the original on 2022-12-25, retrieved 2022-03-26
  28. ↑ Episode 56: Here Comes The Judge - Crime Time: With Virginia Defense Attorneys, archived from the original on 2022-12-25, retrieved 2022-03-29
  29. ↑ "Evidence Based Sentencing Practices CLE". www.fairfaxbar.org. Archived from the original on 2022-12-26. Retrieved 2018-01-24.
  30. ↑ "Using Evidence-based Practices in Sentencing Criminal Offenders | CSG Knowledge Center". knowledgecenter.csg.org. 2012-07-03. Archived from the original on 2017-12-25. Retrieved 2017-12-24.
  31. 1 2 Rose, Kenneth (December 2013). "The New Norm for Pretrial Justice in Virginia" (PDF). www.dcjs.virginia.gov. Archived (PDF) from the original on 2018-02-09. Retrieved 2018-01-12.
  32. ↑ "VADOC — Virginia Maintains the Lowest Recidivism Rate in the Country". vadoc.virginia.gov. Archived from the original on 2021-06-01. Retrieved 2021-05-24.
  33. 1 2 Jouvenal, Justin (2018-06-14). "A judge appears to be the first in Northern Virginia to drop cash bonds". Washington Post. ISSN 0190-8286. Archived from the original on 2018-06-15. Retrieved 2018-06-15.
  34. ↑ "While Virginia studies cash bail alternatives, local prosecutors and judges increasingly take reform into their own hands - Virginia Mercury". Virginia Mercury. 2018-11-26. Archived from the original on 2018-12-01. Retrieved 2018-12-01.
  35. ↑ "Federal judge on landmark Harris County bail suit implements revisions to policy". Houston Chronicle. Archived from the original on 2018-06-30. Retrieved 2018-07-01.
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  38. 1 2 "Com. v. Corey Hunter" (PDF). fairfaxcounty.gov. 2020-11-06. Archived (PDF) from the original on 2023-03-02. Retrieved 2023-03-01.
  39. ↑ Dunnaville, Clarence M. Jr. (2021-02-01). "Virginia's Cash Bail System: Denying Due Process to the Poor". virginialawyer.vsb.org. Archived from the original on 2023-01-19. Retrieved 2021-02-07.
  40. 1 2 "Commonwealth v. Hockett Barela - MI-2017-4" (PDF). fairfaxcounty.gov. 2017-09-28. Archived (PDF) from the original on 2018-08-25. Retrieved 2018-01-12.
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  54. ↑ "Subcontract – Warranty – Virginia Consumer Protection Act – Statute of Limitations". Virginia Lawyers Weekly. 2017-11-13. Archived from the original on 2017-12-01. Retrieved 2017-12-19.
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  91. ↑ Editorial Board. "Opinion | A Virginia judge reconsiders the portraits of judges — virtually all White — lining his courtroom walls". Washington Post. ISSN 0190-8286. Archived from the original on 2021-01-12. Retrieved 2021-01-09.
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  101. ↑ "Com. v. Zackary Thomas Burkard" (PDF). fairfaxcounty.gov. 2023-02-16. Archived (PDF) from the original on 2023-02-26. Retrieved 2023-02-26.
  102. ↑ Weekly, Virginia Lawyers (2023-09-06). "Court lack power to modify unserved sentence | Virginia Lawyers Weekly". Archived from the original on 2023-09-07. Retrieved 2023-09-07.
  103. ↑ "Com. v. Jason Keith Walker" (PDF). fairfaxcounty.gov. 2023-07-31. Archived (PDF) from the original on 2023-09-02. Retrieved 2023-09-02.
  104. ↑ "Givago Gowth, LLC, et al. v. iTech AG, LLC, et al" (PDF). fairfaxcounty.gov. 2023-10-04. Archived (PDF) from the original on 2023-10-08. Retrieved 2023-10-08.
  105. ↑ Hurston, Nick (2023-10-23). "Filing lis pendens is not a 'process' | Virginia Lawyers Weekly". Archived from the original on 2023-10-23. Retrieved 2023-10-23.
  106. ↑ "J. A. S. v. Commonwealth" (PDF). fairfaxcounty.gov. 2023-10-06. Archived (PDF) from the original on 2023-10-08. Retrieved 2023-10-08.
  107. ↑ Weekly, Virginia Lawyers (2023-11-05). "DUI charge can be expunged | Virginia Lawyers Weekly". Archived from the original on 2023-11-06. Retrieved 2023-11-06.
  108. ↑ "Tessema v. Moulthrop" (PDF). fairfaxcounty.gov. 2023-12-08. Archived (PDF) from the original on 2023-12-11. Retrieved 2023-12-10.
  109. ↑ "Livingston v. Stark" (PDF). fairfaxcounty.gov. 2023-12-19. Archived (PDF) from the original on 2023-12-19. Retrieved 2023-12-19.
  110. ↑ Hurston, Nick (2024-01-07). "'Minor inconvenience': Child's custody preference not a material change | Virginia Lawyers Weekly". Archived from the original on 2024-01-07. Retrieved 2024-01-07.

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