David Bernhard

Bernhard in 2012

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 and the Virginia House of Delegates, for an 8-year term commencing July 1, 2017.

Bernhard is only the second immigrant, and the first one from Latin America, to have been elected Circuit Court Judge in Virginia. His election was preceded by an evaluation by the Fairfax Bar Judicial Selection Committee which issued an Executive Summary highly recommending his candidacy, followed by a favorable vote by the Fairfax Bar Association membership. Subsequently, state legislators of the Virginia General Assembly having precincts in Fairfax County, voted as later reported in committee, to unanimously recommend his approval to the full legislature. Bernhard was sworn into office on June 30, 2017.

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.

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

Attorney career

David Bernhard was first admitted to practice law in Maryland (1989), Virginia (1988), District of Columbia (1987), Missouri (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 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 difficult cases such as a murder case which was only the second instance of a jury trial being televised in the history of the Fairfax Circuit Court, engendering debate as to the circumstances if any under which cameras ought to be allowed in a courtroom. Notable matters he and Cheryl Gardner handled included challenging admissibility of certificates of analysis offered without the presence of a technician in DUI prosecutions, and confronting problems with enforcement of Northern Virginia toll road civil penalty cases, in each case contributing to the enactment of changes to the Code of Virginia. His appeals, which involved collaboration with Gardner, include Virginia's first civil Gideon case, a cooperative effort with Clarence M. Dunnaville Jr., culminating in amending legislation expanding the right to counsel; the seminal Benitez decísion policing abusive litigation practices; 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." 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. A legal innovator, in 2012 he was named a “Leader in the Law” by Virginia Lawyers Weekly.

Judicial service

David Bernhard has spoken about his improbable journey to becoming a Fairfax Circuit Court of Virginia trial judge and what it is like to serve in such role.

Upon assuming office he was an early proponent and implementer of developing evidence-based sentencing and pre-trial practices. 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. 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. 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 of the emerging view that such monetary requirements often amount to "wealth-based detention" 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. 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. 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. 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.

On August 14, 2020, Judge Bernhard joined his 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.

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, the Virginia State Bar background investigation noting "exemplary feedback" for Bernhard with sources describing him as "a spectacular judge and a well-respected practitioner." After again being highly rated by a number of Bar organizations, on March 7, 2024, the Virginia General Assembly elected him to serve as a judge of the Court of Appeals of Virginia to commence an 8-year term on January 1, 2025, becoming the first Hispanic and Latino American, and the first immigrant elected to serve on any Virginia appellate court.

Bernhard has often addressed matters of first impression in Letter Opinion judicial decisions, which in Virginia constitute persuasive authority.

Notable opinions

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:

• determining probation officers may make sentencing recommendations in their reports;
• 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);
• evaluating whether a subcontractor in a commercial transaction may be subjected to liability under the Virginia Consumer Protection Act;
• holding when medical causation testimony is unnecessary to commit the decision as to guilt for a crime to a jury;
• adopting a partial loan subordination approach for analyzing the impact of liens with a circuity of priority;
• interpreting the scope of statutory preemption of negligence and conversion claims in the context of a fraudulent wire transfer of funds;
• determining when declaratory judgment actions may be maintained ancillary to administrative adjudications;
• finding a governor of a requesting state may act through an agent in extradition proceedings;
• 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;
• holding a court could not vacate a nolle prosequi granted after trial commenced as such grant divested jurisdiction over the criminal offense charged;
• 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;
• delineating when a residential driveway is subject to prohibition of warrantless arrests thereon;
• finding an implied-in-fact agreement erased support arrearages;
• holding "challenger pays" attorneys' fees contract clauses are void as against public policy;
• analyzing and rejecting application of the rule of the last antecedent, and determining unlicensed noncommercial Lenders are subject to the Virginia Consumer Protection Act;
• delineating the standard and framework applicable for judicial restoration of gun rights;
• 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;
• analyzing when the courts are divested of jurisdiction to determine child custody pertaining to a child who is no longer present in Virginia;
• finding de bene esse depositions may be used in support of summary judgment;
• determining exercise of reservations of spousal support do not require a showing of material change in circumstances (prompting change by statute);
• 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;
• 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;
• 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;
• delineating when a required probationary condition may be excused for inability to comply;
• 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;
• finding use of cash bail unconstitutional as-applied;
• delineating the broad scope of the constitutional and statutory power of Commonwealth's Attorneys to prosecute criminal offenses in Virginia;
• 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;
• holding that affirmative defenses adjudicated by plea in bar are not to be revisited anew at trial in most instances,
• detailing when spreading bamboo becomes an actionable nuisance and that the statute of limitations does not apply when relief sought is entirely equitable;
• delineating when "romantic partner" clauses are void as against public policy;
• determining a sole proprietor is not an "employee" under the workers' compensation law;
• holding the court has the discretion to permit a defendant to retract a request for jury sentencing;
• 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;
• holding that the filing of a lis pendens may not serve as the legal basis for the tort of malicious abuse of process;
• detailing a framework for analyzing when a criminal charge that was amended can be deemed "otherwise dismissed" and expungable;
• 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;
• 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;
• finding George Mason University ("GMU") cannot be held liable under The Fraud Against Whistle Blower Blower Protection Act ("FAWPA") because GMU is neither a person nor an agent of a governmental agency, thereby not fitting the FAWPA’s definition of “employer,” and that the FAWPA cannot be the basis for a Bowman wrongful discharge claim because the statute itself provides a remedy to vindicate the public policy the FAWPA seeks to advance.

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External links

• Fairfax Circuit Court
• Judicial Opinions of the Fairfax Circuit Court
• Virginia Courts in the 19th Judicial Circuit
• Court of Appeals of Virginia
• Pageviews Analysis