Lindsay Clancy should not be tried twice

By David Oscar Markus

Eleven jurors voted to acquit Lindsay Clancy, while one juror held out against acquittal.  After almost two months of trial, more than 80 witnesses, and seven days of deliberations, Judge William Sullivan declared a mistrial on Friday. Plymouth County District Attorney Timothy Cruz said he will decide later whether to try her again.

He should not. And the law should not let him.

Most people wrongly assume the Constitution already takes care of this. The Double Jeopardy Clause says no person shall "be twice put in jeopardy of life or limb" for the same offense. That seems pretty straightforward – the government should get one shot at a conviction.  But the Supreme Court has said otherwise.

It started back in 1824 with United States v. Perez. Josef Perez was tried for piracy, a capital offense. The jury hung.  The Supreme Court explained that the defendant could be tried again where there was “manifest necessity” for the mistrial. Then in 1984, the Court decided Richardson v. United States, in which a jury acquitted the defendant on one narcotics count and hung on the two others. He argued that because the government had already had its chance at a trial to convict him, it should not be able to have a second bite at the apple. Justice Rehnquist disagreed. The failure of a jury to reach a verdict, he wrote, "is not an event which terminates jeopardy."  Justice Brennan was right in his dissent where he said that the defendant was being subjected to a second trial, which the Constitution did not permit.

The Court took up a similar issue about 15 years ago in Blueford v. Arkansas. Before deliberations ended, the foreperson told the judge the jury was unanimous against guilt on capital murder and on first-degree murder, deadlocked on manslaughter, and had not yet voted on negligent homicide. The jury kept deliberating, got nowhere, and the judge declared a mistrial. Chief Justice Roberts wrote that the foreperson's report "was not a final resolution of anything." So Arkansas could retry Blueford on everything, including the two charges all twelve jurors had rejected out loud in open court. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

The Supreme Court has cleared a path for Clancy to be tried again. But prosecutors should not do so and the Supreme Court should take another look at this issue.

The prosecution had a chance to put on its best case. Twelve people listened to all of it. Eleven of them had reasonable doubt. Judge Sullivan told the jurors on Thursday that a strong probability of guilt is not enough. By any honest measure, the prosecution failed to carry its burden.  If the government cannot prove its case at a trial, that should be the end of the matter.

Think about what a retrial means for Clancy. She goes back to the state hospital and waits. It could be a long time. Another seven weeks of testimony about the deaths of her children. Another set of experts. Another bill. Another enormous imposition on jurors, court staff, the judge. 

Plus, it’s not fair.  The prosecution gets a preview of the defense theory, its cross-examinations, its opening and summation. One of the only advantages the defense has in a criminal trial is the element of surprise.  All of that is gone in a retrial, which is why prosecutors typically do not lose twice in a row.

Of course, Massachusetts did just that recently. Karen Read's first jury hung in July 2024. The Norfolk County District Attorney tried her again. In June 2025, the second jury acquitted her of second-degree murder and leaving the scene, and convicted her only of operating under the influence. She got a year of probation. It took two trials and years of her life to get there, in addition to the huge expense to taxpayers.

The Supreme Court explained in Green v. United States, that the State, "with all its resources and power," should not be allowed to make repeated attempts to convict a defendant where he was acquitted because it subjects a defendant to "embarrassment, expense and ordeal" and compelled “him to live in a continuing state of anxiety and insecurity.” So too with a retrial after a hung jury.  Those costs do not disappear because the first jury deadlocked.

The Supreme Court should revisit this issue. "Twice put in jeopardy" means what it says. Jeopardy attaches when the jury is sworn. If the government cannot persuade that jury, the case should be over.

If the Court will not act, Congress or the States should. Nothing in the Constitution stops Massachusetts from barring retrials after a hung jury.

Cruz can make all of this moot. He can announce that he will not retry Lindsay Clancy. Eleven jurors already told him what they think of his case. The prosecution had the burden to prove Clancy guilty beyond a reasonable doubt and it failed to do so.  That should be it.

Investiture of Magistrate Judge Yeney Hernandez

By Jordi C. Martínez-Cid

Yesterday was the investiture of The Honorable United States Magistrate Judge Yeney Hernandez. Two things stood out. First, Judge Hernandez's story is remarkable. Second, I think everyone who attended left with a very clear picture of Judge Hernandez's character.

Judge Hernandez was born in Batabanó, Cuba, and came to the United States with her parents at a very early age. Raised in Hialeah, she completed her undergraduate education at Duke Univeristy and got her juris doctor from Yale Law School. From there, a clerkship on the Sixth Circuit Court of Appeals, several years at Skadden Arps in D.C., and, from 2017 until her recent elevation, a position as an Assistant United States Attorney in this district. The judge and others relayed the sacrifices her parents made, how hard they worked, and how they encouraged and inspired confidence in the then-future judge. From humble beginnings, to lofty heights. It is inspiring to see a true American dream come true.

All the speakers, including the judge and her husband, AUSA Jason Wu, were great. Full disclosure, Judge Hernandez, her husband, and I, were all in the same class in law school. Also, I was a speaker, but the least of them. All of the speakers hit on the same themes, which is indicative of the judge's quality. Judge Hernandez is a person of integrity, remarkably smart, hardworking, humble, and dedicated to public service. The examples and stories are too many to recount here and my retelling would cheapen the speeches of the aforementioned and Wifredo A. Ferrer, Alejandra López, The Honorable Deborah L. Cook, and the judge's mother, Lismeli Alfonso.

I wish my classmate all the the luck in the world.

Judicial Grace

By John R. Byrne

I clerked for Judge Jeffrey R. Howard, who is now a senior judge on the U.S. Court of Appeals for the First Circuit. He was (and is) a great person and a true gentleman. 

When I started my clerkship, he shared his philosophy when it came to drafting opinions. He never wanted to see drafts that were overly dismissive or critical of the parties making the arguments or the trial judge who made the rulings below. He preferred phrases like, "We disagree" over ones like "The trial court erred" or Party A or B "is wrong." His thinking was that the practice of law is hard enough and taking a shot at a lawyer or another judge, particularly with the benefit of hindsight, isn't productive or gracious.

Just recently, I read a concurrence from one of our own judges, Judge Singhal, that felt like something Judge Howard would have written. 

The case was Georgia Atlas, Inc., et al v. Executive Director of the Georgia Access to Medical Cannabis Commission, et al. Judge Singhal was sitting by designation on a panel that vacated the trial judge's dismissal of a complaint for lack of standing. Judge Singhal wrote separately and said the following:

"On the arguments presented below, the distinction between being heard and obtaining relief was less developed. Our review of jurisdiction, however, is independent, and the arguments before us constitute a fuller presentation of the issues. While I cannot fault the district court on the ruling it reached on what it was given, I must conclude the district court was mistaken. Accordingly, I concur."

I think sometimes judges can lose sight of the stinging effect a negatively worded order or opinion can have on a lawyer (who may have to share that order with an important client) or even a judge (yes, even judges with life tenure). 

Judge Singhal also included the following joke in his concurrence, which I'm sure district judges enjoy telling at the Eleventh Circuit Judicial Conference:

A Supreme Court justice, a circuit judge and a district judge go duck hunting. A duck flies overhead and the Supreme Court justice, before she picks up her shotgun, ponders the policy implications of shooting the duck. How will the environment be affected if she shoots the duck? How will the duck-hunting business be affected if she doesn’t shoot the duck? By the time she finishes, the duck has flown away.

Another duck flies overhead, and the circuit judge goes through a five-part test before pulling the trigger: He lifts the shotgun to his shoulder, he sights the duck, he measures the velocity of the duck’s flight, he aims, and he shoots. And he misses.

Finally, another duck flies by, and the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and tells the other two judges to explain what he did over dinner.

You can read the opinion here. 

Eleventh Circuit Saves False Claims Act

By John R. Byrne

The False Claims Act is one of the federal government’s tools for fighting fraud against the government. Among other things, it allows private individual who are called “relators" to bring qui tam lawsuits in the government’s name. If the suit succeeds, the relator can receive up to 30% of the recovery. Most of time, these people are insiders who are blowing the whistle on something they've seen.

About two years ago, you may have read or heard that a federal judge had declared the False Claims Act was unconstitutional. That judge was Judge Mizelle out of the Middle District of Florida, and she held that the False Claims Act violated the Constitution's Appointments Clause. Judge Mizelle reasoned that, because relators exercise "significant authority pursuant to the laws of the United States" and "occupy a continuing position established by law" they were "officers of the United States" and needed to be "presidentially appointed." Because the False Claims Act didn't require relators to be so appointed, it was, she said, unconstitutional.

The Court's ruling created quite the stir. And no doubt people pondered the logistics and practicalities of having the President of the United States formally appointing whistleblowers to file qui tam actions in one-off case after one-off case.

Well, ponder no longer. The Eleventh Circuit (a panel comprised of Judge Branch, Judge Luck, and Judge Moreno sitting by designation) vacated the court's order dismissing the case and held that the qui tam provisions of the False Claims Act don't violate the Appointments Clause. 

Writing for the panel, Judge Branch concluded that a relator is not a federal “officer” because a relator does not occupy a continuing position established by law. A relator’s job is tied to a particular case, carries no continuing salary, and cannot simply be handed off to a replacement. There is, the Court put it rather pointedly, “no ‘office of relator.’”

That doesn’t quite end the constitutional fight. Judge Mizelle never reached the defendants’ separate arguments under the Take Care Clause and Vesting Clause, so the Eleventh Circuit sent the case back for her to consider those arguments.

In case you're going on Jeopardy soon, the Latin phrase "qui tam" comes from the longer Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which translates to "Who sues on behalf of the King as well as for himself." 

Scribbed is not allowing uploads right now but you can find the opinion here.

Judge Roy Altman cleared

By David Oscar Markus

 An attorney named Katherine Giannamore leaked a judicial complaint against Judge Roy Altman to Above the Law a few weeks ago.  It generated a bunch of whisper buzz among the legal community, which was of course the purpose of leaking it.  

Judge Altman issued a response, which is typically kept confidential.  But he asked Chief Judge Pryor to make it public since the leaker's complaint was out there.  Judge Pryor agreed to make the response and his order public, which can be accessed here.   The conclusion from the Order dismissing the Complaint:

 "Based on these Canons, the Complaint fails to present a basis for a finding of misconduct.  The Complaint makes allegations lacking sufficient evidence to raise an inference that Judge Altman exhibited bias, made inappropriate statements, violated the Code of Conduct, or otherwise engaged in misconduct, and the limited inquiry "demonstrates that allegations in the complaint lack any factual foundation or are conclusively refuted by objective evidence." 

"A lie travels half-way around the world before the truth puts its shoes on in the morning."  That quote (or similar versions) have wrongly been attributed to Mark Twain.  Whoever said it, it's especially true in this era of social media, email, and the like.  So when Above the Law posted the complaint, Judge Altman was wrongly -- and quickly -- smeared.  I have followed Above the Law since David Lat founded it many years ago.  It's a fun website that posts interesting topics.  I hope it posts this Order and Altman's response so that the false accusations against Altman get the same airtime.  

Construction to proceed at the White House

Chief Justice Roberts joined the dissent for this 5-4 opinion.  

In light of this decision, can the Miami mayor demolish the state criminal courthouse and start fresh?

In sad news for me, Killian high school is struggling.  From the Miami Herald:

Lisa Oberlander fondly recalls her time at Miami Killian Senior High in the 1980s. The school was bustling with a large, high-achieving and diverse student body. Its biggest issue back then was overcrowding. The scene in her first year teaching a Digital Arts class at her alma mater has been somewhat different.

In the middle of one of the school’s cavernous “learning lab” spaces, eight students huddled in boxy armchairs, propping laptops on their knees and clicking through a design app. Surrounding them were dozens of empty desks in the darkened, unused parts of the room.

That’s every day at Killian — more space than the students could ever use. Going from 3,700 students in 2004 to just 430 to start this year, the school’s enrollment has declined more, and faster, than any other in Miami-Dade. The state estimates it’s using only 20% of its building’s total capacity.

Finally, the Florida Bar complaint against James Percival has been dismissed.

By DOM

Should judges be using AI?

We know that they are.  Sometimes it jumps off the page.  In fact, here's an article detailing how much it's being done:

To get a baseline, I tested all the published circuit opinions from January 2022, more than 300. Pangram found no signs of AI-generated text in any of them. Not one passage, and not one sentence. Every opinion returned "0.000000%" AI. That gave me some confidence that Pangram was not mistaking the ordinary conventions of judicial writing for AI authorship. (Pangram's methods are insensitive to dates, so I did not worry that the opinions' timing influenced these results.)

The results for 2026 looked very different. More than 50 opinions showed signs of AI authorship. The exact percentages ranged from less than 1% to more than 50% AI-written, with most results clustering near the bottom of that range. Still, the contrast with January 2022 was hard to miss.

 We know judges are using AI.  Should they be using it?

Hispanic Heritage Event: "Is Miami Still the Gateway to the Americas?"

By Jordi C. Martínez-Cid

It has long been said that the city of Miami is the “Gateway to the Americas”—a city where cultures, languages, businesses, cross-border legal matters, international crime, and more collide. In our more interconnected global world, is it still?

The District's Hispanic Heritage Event this year will explore that question through the views of younger practitioners. Panelists will discuss what brought them to the United States, the factors that prompted their move, and the influence those experiences have had on their careers. We will hopefully get more insight on how Miami can regain, maintain, or redefine our unique position.

More information on the event and how to RSVP can be found in the flyer below. As a member of the committee that helps plan this, I hope that you can join us on Wednesday, September 23, 2026, in the Ceremonial Courtroom (13-3) at the Wilkie D. Ferguson, Jr. United States Courthouse. The food at these events is always exceptional.