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Fairfax County Circuit Court Judge David Bernhard wrote of Terrance Shipp’s trial to be held on January 4, “criminal defendants are disproportionately of color and judges disproportionately white … the Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites.”
“The broader concern is whether in a justice system where criminal defendants are disproportionately of color and judges disproportionately white, it is appropriate for the symbols that ornament the hallowed courtrooms of justice to favor a particular race or color. Evaluation of this matter is left at present to the sound discretion of each presiding judge. There may be contrary views holding the dignity of the Court process is not offended by celebrating the service of prior judges with display of their portraits.
However, in weighing the interests of honoring past colleagues against the right of a defendant to a fair trial, the Court is concerned the portraits may 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 in the dispensing of justice. The Defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interest of paying homage to the tradition of adorning courtrooms with portraits that honor past jurists.”
“The prevalence of portraits of white judges in the courtrooms of the Fairfax Circuit Court, which constitute some forty-five (45) out of forty-seven (47) individuals, while not emblematic of racism on the part of presiding judges, certainly highlights that until the more recent historical past, African Americans were not extended an encouraging hand to stand as judicial candidates,” Bernhard also said. He continued, “the low hanging rotten fruit of overt racism is easily identified and picked off to strengthen the tree of society. The more conventional symbols which to some impart tradition, and to others subtle oppression, are less comfortably addressed. The ubiquitous portraits of white judges are such symbols.”
He added, “Portraits that overwhelmingly imply justice is the province of administration by whites also arguably increase the danger of jury nullification when the victim is of color and the accused white.”