Turner, the former federal prosecutor, said prosecutors should have realized the issue wasn't settled and headed Schroeder off by asking an appellate court for a ruling or filing more briefs. ... "When the judge expressed skepticism early, they should have done something to make sure it's clear. In a case of this magnitude, if I'm the prosecutor and the judge has expressed some skepticism or doubt about this, I'm going to do everything I can to sustain that count. When you heard early on there was some doubt, you've got to get on this."