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?
