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When the Referee Admits the Call Was Wrong, and the Result Stands Anyway
The Eleventh Circuit found the trial unfair. Then it affirmed twenty years.
On July 31, 2026, the Eleventh Circuit published its opinion in United States v. Hernandez, No. 24-10047. Because it is published, it is now binding precedent in Florida, Georgia and Alabama. This article explains what it decided.
At the end of Elizabeth Hernandez's six-day trial, the government asked for an hour of closing argument and the defense asked for more. The judge gave the government 40 minutes and the defense 30, reasoning that the government should have more time because it carries the burden of proof. Judge Brasher, joined by Judge Jill Pryor, held that this was an abuse of discretion: the burden of proof is a feature of every criminal case, so it cannot justify tilting one. Trial judges in three states may no longer give prosecutors extra closing time on that basis.
Then the panel applied harmless-error review and affirmed, calling it "inconceivable" that ten more minutes could have changed the verdict. The article sets that conclusion against Herring v. New York, where the Supreme Court held that closing argument is a Sixth Amendment right regardless of how strong the prosecution's case looks, and notes the opinion never says whether it treated the error as constitutional. That choice decides who bears the burden on harmlessness.
It also discusses Judge Luck's separate concurrence, which agreed with the result but not the reasoning, and Miami defense lawyer David Oscar Markus's response to the decision, "Our system has lost its way."
Key points
- Published opinion, now binding in the Eleventh Circuit: the burden of proof cannot justify unequal closing time.
- The panel still affirmed under the nonconstitutional harmless-error standard.
- The opinion does not address whether a partial denial of closing argument is a constitutional error.
- A strong case for the government would have made ten extra minutes for the defense cost-free.
Keep reading
The First Verdict Was a Press Release
How a Justice Department announcement convicted Elizabeth Hernandez in public before a jury ever heard the evidence.
Harmless to Whom?
The court admitted the trial was tilted. Then it declined to look again. Five children were never part of the math.
When "Harmless Error" Causes Harm
How "harmless error" lets courts affirm convictions without ever knowing what a jury would have done.