However, that the new prosecutor did not counter your expert or address the issue seems more useful. The defendant can argue that the prosecutor should be limited by the written response, so that if the prosecution attempts to raise the issue at the hearing, the defendant can argue that they waived the objection by not addressing it the opposition to the Petition.
Should this be mentioned in the response that prosecution did not counter our expert or our argument that their expert gave erroneous testimony?
I noticed something else on court
website for this case and that is someone must have requested the testimony for prosecution expert because there was a notice of filing and it stated what was filed was "..Excerpt of Transcript of Proceedings --volume II--Jury Trial
(Testimony of Prosecution's Expert's Name had on November 9, 2011, consisting of 17 pages in the above styled case. Date this 24th day of July 2013."
Doesn't this appear that someone must have requested that information?
I am thinking OSBI or ASCLD. I am also thinking it must be more than just the prosecution's expert testimony because I am sure his testimony alone was not 17 pages long.
Just thought of something else. If the prosecution is not arguing in support of their expert then our expert witness is not likely to be needed or approved by judge is he?
You also said:
"..Second, that there may have been sufficient evidence without the testimony from the state's incompetent expert only means that the defendant is not entitled to a required finding of not guilty if the judge disregards XXXXX XXXXX testimony, and could be retried. If the case was insufficient without the expert's testimony then retrial would be barred by double jeopardy
So are you saying the defendant could argue or the judge could find that since the prosecution argued very strongly in Motion In Limine that they felt they could not win the case without the marijuana testimony then the defendant should be found not guilty if their expert testimony has been found to be erroneous?
And are you also saying even if there is other evidence he could be convicted on, he should at least get a new trial since so much prejudicial evidence had been introduced due to ineffective counsel?