By David Oscar Markus
Imagine the World Cup final goes to penalty kicks. The referee announces that one team gets five kicks and the other gets four for no good reason.
The four-kick team loses. On review, the officials agree the referee got it wrong. But the result stands, they explain, because the winning team was better anyway. The advantage didn't matter. Then one of the three officials on the review panel writes separately to say there was no error at all. The losing team got to take some kicks. That's all the rules require.
No league in the world could survive that. But apparently it's good enough for our criminal justice system.
On Friday, the Eleventh Circuit decided United States v. Hernandez, No. 24-10047 (11th Cir. July 31, 2026). Elizabeth Hernandez, a nurse practitioner from Homestead, went to trial before Judge K. Michael Moore on charges that she defrauded Medicare of $111 million. The trial lasted six days.
The court gave the government 40 minutes and the defense 30. When defense counsel hit her 30 minutes, the court cut her off mid-argument. She asked for ten more. Denied. After the government's rebuttal, she objected again, explaining that 30 minutes hadn't been enough to cover the false statement counts, the loss amount, or good faith.
The panel, in an opinion by Judge Brasher joined by Judge Jill Pryor, agreed this was error. The government carries the burden in every criminal case, the court explained, so that "cannot justify dividing argument time unequally as between the parties." The district court "abused its discretion by applying this unusual presumption of unequal treatment."
But as is often the case, the court found harmless error: "It is inconceivable that granting Hernandez ten extra minutes could have overridden the extensive trial evidence of her guilt."
In other words, the winning team was better anyway.
And believe it or not, that was the defense-friendly part of the opinion.
Judge Luck concurred in the judgment only, because he saw no error in the first place. In his view, a defendant is only entitled to an opportunity to give a closing argument, and enough time to make her legally tenable arguments. In his words: "That's it." So one of the three judges on this panel wouldn't even call five kicks against four a problem.
There's a lot more to this opinion that will get your blood boiling. Good faith was one of the defenses Hernandez said she ran out of time to argue. When the court then read the instructions aloud, it told the jury that "[a] defendant is required to prove good faith."
The law, of course, is exactly the opposite.
The panel held that error wasn't reversible because the written instructions were correct.
Hernandez got 20 years. Is it too much to ask for a defendant to get a fair fight before getting decades in prison?
33 comments:
That is terrible.
The system is horrible and stacked against the accused.
This is another atrocious injustice by our flawed system, for which individuals and families pay the price.
David against Goliath. I remember when this case started all the attorneys told us you will never win against the government be believing our Judicial system was fair and that We were innocent we took it to trial anyway. We never stood a chance.
Unfortunately this is all too common.
I'm fairly defendant-friendly but this seems like an odd case to make this point, David. The whole point of harmless error is that, during the course of a typical trial, there will, of course, be errors, but only precious few can be said to realistically affect the outcome. Given the overwhelming evidence presented against Ms. Hernandez -- including a document, written by her, that she understood that she was involved in a large-scale fraud and that she felt "responsible and fe[lt] guilty" -- it's hard to understand how ten extra minutes for the government could realistically have affected the outcome of her trial.
7:43
If that’s the case, and maybe it truly is, given her good faith defense why not give the defendant the extra ten minutes? Then if she’s acquitted, your analysis here is wrong, and if she’s convicted no appellate issue on a rank common sense fairness issue.
The document that they are discussing was dictated by her prior attorney where the prior attorney told her to admit guilt, even though she is innocent in order to secure a plea deal. It was never read, and the entire transcript of that letter starts with. Thank you for meeting with me today, etc. it was a script that she was supposed to read not an admission of guilt and that’s why it was so important that it would be entered in its entirety into the record and not just the excerpt that the prosecution focused on where she was told to say that in hindsight she sees she was part of a large scale fraud
8:51 -- I'm not quibbling with you there; I am not defending Judge Moore's handling of the closing arguments. I'm pointing out merely that you can't ignore the harmless-error posture in which this decision was decided. (By the way, Judge Luck didn't think that there was any error at all.)
While this opinion is horrible, I’m not sure why it’s the tipping point for you. You obviously have not been paying attention.
It's the antithesis of the document we celebrated a month ago
It was ridiculous to limit her closing to such a short time but the evidence against her was overwhelming even without the "confession" note. I mean among other things she submitted claims for bogus telemedicine sessions where she sought reimbursement for some days where she claimed more sessions than could be accomplished in 24 hours. She was submitting so many false claims she hired people to help her sign and submit them.
It's a bizarre set of circumstances, to be sure. If the jury thinks the judge is putting their finger on the scale, they often correct. Why didn't the defense attorney object that the government got 40 minutes and they got 30 at the time the judge made the initial pronouncement? And, wouldn't a savvy defense attorney (and we know Alex Michaels of blessed memory would have) argue in closing -- "what is it they don't want you to hear -- giving the government 40 minutes and silencing me after 30? Thank god we have a jury system in this country"
Alex would have smashed it. He would have never backed down and been furious over the prosecution getting more time and would have continued his argument all the way back to the defense table after the judge shut him down. We need more like Alex in the face of this decision. And he was one of a kind. And on a personal note I miss him and often think “what would Alex do?” as I face stuff like this in our profession. With by his type of ruling it could well have been his client being released and him being cuffed after the verdict. It happened to him before in a first degree murder case he won.
The false analogy / assumption at play in DOM's argument is that at trial, when the Court gave the Government more time for closing argument, the score was 0-0, and the closing argument was going to make / break the trial.
There was overwhelming evidence of guilt. The score was not 0-0 by the time "the game went to penalty kicks," i.e. closing argument.
Says you. Says appellate judges reading a record. You don’t have any idea what the score was in the jury’s mind. You know the facts of the case as relayed by judges to support a harmless error finding.
Horrible but hardly surprising. “Harmless Error” is the COA’s trump card. Isn’t the right to go to trial based in part on the belief that when all is said and done a jury will agree with you? Harmless Error doctrine makes a mockery of the system and begs the question - Harmless to who?
Deplorable
The claim that the evidence against Hernandez was “overwhelming” accepts the government’s version of disputed facts while ignoring significant evidence presented at trial. Through cross-examination, Hernandez showed that government witnesses could not identify a single Medicare guideline she violated. When confronted with the actual Medicare rules, they admitted their conclusions were based on personal opinion, not on any Medicare violation.
The claim that the evidence against Hernandez was “overwhelming” accepts the government’s version of disputed facts while ignoring significant evidence presented at trial. Through cross-examination, Hernandez showed that government witnesses could not identify a single Medicare guideline she violated. When confronted with the actual Medicare rules, they admitted their conclusions were based on personal opinion, not on any Medicare violation.
@12:37
She billed for $110 million by writing prescriptions for patients she never saw.
Medicare fraud is "when an individual knowingly executes, or makes an attempt to execute a scheme, that defrauds any healthcare benefit program by use of false pretenses, representations, or promises."
The witnesses could not identify a Medicare guideline out of thousands. Big whoop. That's a red herring. That's not how the crime is defined.
The Judge shouldn't have limited the Defense's time. It was wrong. There comes a point where the liberal sentiment, however well-intentioned, becomes absurd and counterproductive
Minor point, but I take issue with you describing 12:37 PM's argument -- that to characterize the record as showing "overwhelming evidence" of guilt is to accept the gov's version of disputed facts -- as "liberal sentiment, however well-intentioned." 12:37 wasn't expressing "liberal sentiment" (whatever the heck that is) -- they were making an argument that you thought was weak. Making a pro-defendant point is not "liberal," and there's no need to ad hominem.
No he’s right. Representing a defendant is purely a liberal thing. I mean the guy is guilty, right and you’re some bleeding heart liberal trying to get a defendant off. Thank goodness we have a new conservative attorney general who would never be a liberal defending a defendant in say , just spitballing here , some mortgage fraud case where the defendant vastly overstated the values of his properties to get a mortgage brought by New York State. We don’t need those kind of liberals or defendants for that matter in our government .
No need for ad hominems?? What?? That is plainly why god gave us comment sections, silly.
20 years for a mother of 5 kids with no prior contact with the criminal justice system is the real problem here. She didn’t kill anyone and only made 1.6 million over the course of several years. All the businesses owners that made the other 110 million got way less time by taking deals and throwing her under the bus. That’s just wrong
She gets 20 years in prison while politicians get rich on insider trading everyday. Our justice system is quite selective.
Bingo. This is the biggest problem with this whole case -- the massive sentencing disparities among all the participants in Operation Brace Yourself. Like cases should be treated (more or less) alike.
Also, it wasn’t just that Moore cut her off in the middle of the closing argument, he had a loud alarm go off and wouldn’t turn it off until the lawyer sat down. Very embarrassing and disrespectful in front of the jury. 6 full days of trial testimony is expected to be addressed in 30 mins? So 8 hours a day of testimony into 5 minutes per day arguments? Seems legit….
One of those business owners who made way more than her and orchestrated the fraud had a prostitute die of overdose on drugs in his house while he was out on bond for this. Govt still used him as cooperator and he got 7.5 years. Elizabeth got 20. Some constitutional right to jury trial we have here..
If the government truly had overwhelming evidence that Elizabeth knowingly participated in the fraud, why did it need to rely on a willful-blindness theory at all?
Elizabeth never billed Medicare for $110 million, and that distinction is critical.
The $110 million figure refers to the Medicare claims submitted and/or attributed to providers and entities using her NPI or orders, not $110 million that Elizabeth personally billed, collected, or received. Elizabeth was an independent contractor who was paid for reviewing charts and signing orders. She did not own or operate the companies submitting the claims, did not control their billing, did not submit claims to Medicare, and did not receive $110 million.
The point is that humans make errors even - gasp - judges. Sometimes (many times) they are stubborn but the error has to be weighed in the totality otherwise every trial that results in a conviction would be retried over and over because there will be error. Thats the genesis of the harmless error rule. If the error is deemed harmless by the a seperate body (court of appeals) then the result stands. It’s a nut punch and mostly if not always to the defense but we have ti have some finality to the process
Incredible that this happen in usa hernandez has small kids that cry and miss her. This are false accusation it was like a monkey fighting again a lion if she billed medicare 110 million where is the money when she could not affort to pay for a high qualify attorney from the begining even by selling every thing she had i know this family personaly how much yhey had and how much they expend it is a discrace what they done to her and family but remember no body leave without paying karma and is nothing more rewarding when you put the head on your pillow you had help someone in need and done the wright thing sincerely amarilis baldomero RN. Sent
Post a Comment