dissenting.
I join in Judge Bright’s dissent but I write separately in rejoinder of Judge Arnold’s concern. I too am reluctant to review a prior holding of this court on the basis of a successive petition raising the same ground. Normally, unless the “ends of justice” require it, we need not and should not do so. However, as Justice Harlan earlier pointed out, federal courts should not have a fetish about finality when life or liberty is at stake and when there are demonstrable reasons to reopen the proceedings.1
Notwithstanding Judge Arnold’s affirmation of what he says has occurred, Walker’s present petition for a writ of habeas corpus is not now denied by this court because of the successive petition doctrine. Had this been the court’s holding by a short opinion or order, I might have joined it. But notwithstanding whatever rubric the majority has chosen to use, the fact is that Judge Gibson’s opinion has not followed the successive petition rule, but has painstakingly analyzed the entire record concerning both trials and all postconviction proceedings.
The successive petition rule is designed to dispose of frivolous litigation, to conserve judicial energies, and to provide some degree of repose and confidence in the pri- or judicial proceedings. It must turn as well on the presumption that a grouping of new judges should not be any more qualified to pass judgment than those who preceded us.
But this is not what has happened here. For two years now this entire court (en banc) has been engaged in record analysis: sifting, probing, rescreening, examining, and reexamining hundreds of pages of records. The judicial energies intended to be protected and conserved under the successive petition doctrine have long ago been expended by all of the judges of this court. Why? I think the reasons should be obvious why this court has given plenary review to these proceedings:
1) Our prior judgment, Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969), did not delineate in detail the obvious inconsistencies and deficiencies in the evidence, now so ably discussed by Judge Bright. When these facts were illuminated by present counsel it gave all judges on this court cause for concern as to Walker’s guilt or innocence.
2) The sufficiency of evidence in light of the overall record had never been analyzed as has now been done by the majority and dissenting judges.
3) The obvious error of the Arkansas Supreme Court and of this court relating to the question of bias and prejudice of the trial judge is made apparent when viewed in light of the inconsistent and deficient evidence surrounding Walker’s conviction.
4) Subsequent to our earlier holding, the intervening decisions of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), were decided by the Supreme Court of the United States. As the majority points out, the sufficiency of evidence in the second trial was not raised as an independent ground in the district court or in this court. (I feel the majority errs in attempting to resolve this issue when it has not been presented to the district court nor briefed as an independent ground in this court). However, the relevance of Jackson and Agurs has been the primary cause for the searching study of the record (a first in any postconviction proceeding in this case) as it relates to the judicial bias question and the suppression of material evidence. These issues were not determined and not analyzed.in our prior decision; the overall evidence of the record, in terms of whether a rational trier of fact could hold beyond a reasonable doubt that Walker is guilty, was not taken into account. Prior to Jackson and Agurs, a federal court could only review a state court record in terms of whether there existed any evidence to sustain a conviction. Surely the new standards of review require a much more searching analysis of the record when reviewing collateral issues of judicial bias and suppression of evidence. When this is done, it is difficult for me to say that the “successive petition” doctrine has in any way been offended.
*1252BRIGHT, Circuit Judge, dissenting, joined by LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.
We dissent.
Walker’s murder conviction rests upon the highly implausible theory that Officer Vaughan, having taken a fatal bullet wound to the heart, could thereafter fire six shots and wound Walker five times. Our examination of the lengthy records of Walker’s two trials and two habeas corpus hearings leads us to the inescapable conclusion that a great injustice has been done and that Walker is entitled to habeas relief. This miscarriage of justice rests primarily upon two substantial grounds: (1) the admitted prejudice of Judge William C. Kirby, the trial judge who presided over both of Walker’s trials, and who manifested his prejudice through several crucial rulings against Walker, thereby ensuring that the jury would not hear the whole story; and (2) the actions of the prosecutors and police, who suppressed crucial evidence that could very well have established the falsity of the state’s entire case against Walker. Moreover, the record as a whole indicates the strong probability that Walker did not shoot Vaughan.
These may be bold statements to make about an eighteen year-old conviction that has been reviewed and affirmed by the Arkansas Supreme Court, Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966); by two federal district courts, Walker v. Lockhart, 514 F.Supp. 1347 (E.D.Ark.1981) and Walker v. Bishop, 295 F.Supp. 767 (E.D. Ark.1967); and by this court, Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969). Yet, if these statements ring true, the public’s, as well as the courts’, interest in the finality of criminal convictions must give way to the more important concern of ensuring justice to a person who, having been convicted of a crime in an unfair trial, does not on the whole record appear to be guilty beyond a reasonable doubt. Here, Walker’s filing of a successive application for writ of habeas corpus provides this court with the proper means of rectifying a gross miscarriage of justice. We would issue the writ.
We note that Judge Heaney, who joins in this dissent, served on the panel of this court which affirmed the denial of Walker’s first petition. Walker v. Bishop, supra, 408 F.2d at 1378 (1969). His joining this opinion serves to emphasize that the previous panel erred and that the important interest of finality should, in this case, give way to the more important interest of righting a grievous, eighteen-year miscarriage of justice.
The three other judges who join this dissent also believe that the prior panel of this court made a mistake in 1969 in affirming the denial of Walker’s initial petition for a writ of habeas corpus. Additionally, one judge who votes with the majority in the present proceeding also seems to agree that the prior panel erred. Judge Arnold, in a colloquy with the attorney for the State of Arkansas during the oral argument of this appeal, said in open court,
Here, you have got a case where the [trial] judge was prejudiced. We all know that. All you are telling us is that it didn't make any difference. But I am telling you that if I had been on this court when this case came up before, I would have voted to grant the writ. I don’t see, I just don't see how the State of Arkansas can justify [it]. I understand the legal points you are making. They may be right, and that’s what we are going to vote on. But with a record like this, with a judge that is prejudiced, really there ought to be a reprieve. [Statement of Judge Richard S. Arnold, transcript of November 29, 1983 oral argument (emphasis added).]
After counsel for the State responded that a reprieve was a matter for the Governor, Judge Arnold-added:
It is for counsel for the State to advise the Governor, but what he does is his business. I just don’t see how you can say, or maybe you are not saying this. You are not saying the judge was not prejudiced. [Id.]
Thus one of the five votes constituting the majority that today denies Walker relief from an unfair trial before an admittedly prejudiced trial judge rests on timing — on the belief that it is now too late to rectify a mistake made in 1969 by a prior panel of this court and that the court has no right or obligation to correct the error that unjustly imprisons Walker now, and perhaps forever. Despite the highly questionable evidence of guilt, Walker may remain in prison for the rest of his life. His case has become a cause celebre in Arkansas, and his attorneys inform us that at Walker’s parole hearings busloads of police attended to protest his possible release. Walker has been denied parole on every application.
*1253In this case, the usual notions of finality should give way to the interests of justice. As the United States Supreme Court has said:
Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged. If “government ... [is] always [to] be accountable to the judiciary for a man’s imprisonment,” Fay v. Noia, * * * [372 U.S. 391, 402, 83 S.Ct. 822, 829, 9 L.Ed.2d 837 (1963) ], access to the courts on habeas must not be thus impeded. The inapplicability of res judi-cata to habeas, then, is inherent in the very role and function of the writ. [Sanders v. United States, supra, 373 U.S. at 8, 83 S.Ct. at 1073.]
In support of habeas relief, this dissent advances four propositions:
1) It is proper for this court sitting en banc to entertain Walker’s successive ha-beas petition.
2) The expressed prejudice of Judge William C. Kirby, the state trial judge who presided over both of Walker’s trials, infected Walker’s second trial to such an extent that the conviction should be set aside.
3) The record in this case clearly shows that the prosecution withheld crucial evidence at Walker’s trials, and that the withheld evidence, as it later surfaced, demonstrates that Walker was, in all probability, wrongly convicted.
4) After examining the full record, tak-. ing into account the evidentiary matters tainted by Judge Kirby’s manifest prejudice and the evidence suppressed by the prosecutors or police, no rational trier of fact would find Walker guilty.
I. The Appropriateness of Entertaining En Banc This Successive Petition for Writ of Habeas Corpus.
Walker appealed the 1981 district court order denying his second petition for a writ of habeas corpus and dismissing his claim under 42 U.S.C. § 1983. Initially, a panel of this court consisting of Judges Heaney, Bright, and Ross heard oral argument in this appeal. The panel referred the matter to the court en banc, which agreed to hear, and then actually heard, renewed' oral argument in this appeal. Subsequently, the case was argued again before a second, and different, en banc court under circumstances related in the addendum following this dissent.
Several considerations justify the initial en banc review in this case. In the event Walker successfully establishes a basis for habeas relief, as we believe he has, the court, to grant relief, must directly contravene the decision of one of its panels. Under the Eighth Circuit’s practice, a panel must follow prior panel precedent, and only the court en banc can overrule the prior decision of a panel. Remedying errors committed by a panel in a previous case represents a significant departure from the normal appellate process and should be taken only in the extremely rare case in which the petitioner can demonstrate constitutional errors of great magnitude.
We are all aware of the ever-growing caseloads that have inundated the federal courts. The procedure adopted in this case — under which a previous denial of ha-beas relief will be reconsidered only when the court en banc deems it appropriate— will assure that only the most exceptional of cases will be heard more than once. In all but such extraordinary cases, successive petitions for habeas corpus can be disposed of summarily. Thus we need not refrain from granting relief in this case for fear that our action will open the judicial floodgates to successive habeas corpus petitions.
The majority opinion, supra at 1241-42, correctly states the test for consideration of a second habeas petition: A court may consider a successive petition for habeas corpus when the ends of justice require it. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963).1 *1254It is the “ends of justice” on which we focus here. We conclude that they justify a new review of Walker’s claims, and that we should grant the writ.
II. Background.
A. The Shooting.
Travelling southeast on Arkansas Highway 130 in pursuit of two criminal suspects, Officer Gene Barentine stopped a white, late-model Oldsmobile driven by Russell Kumpe. Two passengers, both seated in the car’s front seat, accompanied Kumpe: Linda Ford sat in the center, and Walker sat on the passenger’s side. Almost immediately after Barentine stopped the car, Officer Vaughan arrived on the scene. Within minutes, taxicabs driven by Thomas Short and Aaron Paul Alderman also arrived, in time to witness events culminating in the shooting.
Barentine ordered Kumpe out of the driver’s side of the car and began to search him. Vaughan approached the right side of the Oldsmobile. Gunfire then broke out on the right side of the Oldsmobile.
At this point, the precise order of events becomes uncertain. At some point during the confusion, Kumpe tried to escape. Bar-entine fired twice and downed him. Baren-tine fired four shots at Walker from the back of the Oldsmobile, radioed for help, reloaded his revolver, and fired once again.
When the shooting ended, Vaughan lay dead or near death with a bullet wound to his heart. Walker, wounded five times, lay face down beside the Oldsmobile, only a few feet from Vaughan. In his right hand Walker held a fully-loaded, snub-nosed .38 Smith & Wesson revolver. It is undisputed that this gun did not shoot Vaughan. Police also found a .38 caliber Colt revolver in the Oldsmobile. This gun was also fully loaded, and it is undisputed that it did not shoot Vaughan. Finally, police recovered a police-type weapon described as a Smith & Wesson .38 caliber revolver with a four-inch barrel. Prosecution witnesses testified that police found this gun underneath or next to Walker when he was rolled over onto his back after the shooting. A police witness described the gun as empty when found. Other testimony disputed the location where the gun was found.
B. First Trial.
In the first prosecution, the State did not disclose evidence that two bullets from Vaughan’s gun had been recovered from Walker’s body during Walker’s surgery after the shooting. The State proceeded on the theory that first Walker shot Vaughan and then Barentine and Walker engaged in a shootout through the back window of the Oldsmobile. To explain how Walker shot Vaughan the State theorized that Walker had two guns, the Smith & Wesson four-inch-barrel revolver, allegedly found underneath Walker after the shooting, and the unfired Smith & Wesson snub-nosed revolver found in Walker’s right hand. The State alleged that Walker, firing first, shot Vaughan with the Smith & Wesson four-inch revolver, but somehow wound up holding only the fully-loaded snub-nosed revolver. This theory found support in the testimony of Linda Ford, age 17, who sat between Kumpe and Walker. She described Vaughan’s approach to the passenger’s side of the Oldsmobile: “[t]hen the door was open and [Walker] started firing.” [R. I, 120.]2 On cross-examination, however, Ford conceded that she did not actually see Walker fire. [R. I, 121.]
Indeed, a careful examination of the record indicates that Ford’s conclusion that Walker “fired” rested not on any direct observation of Walker, but only on Ford’s having noticed no flash from the officer’s gun at the time she heard the first shot:
*1255Q (Cross-examination): How do you know it wasn’t the officer firing?
A (Linda Ford): Because I saw him whenever he opened the door, and I could see the fire from his gun whenever he fired, and it was the first shot that I had heard. [R. I, 121.]
In addition, the first eabdriver on the scene, Thomas Short, testified that after the right door of the Oldsmobile opened, he heard a shot and Vaughan “just raised up off the ground and fell flat on his chest.” [R. I, 82-83.] Short, too, conceded that he did not see shots fired, but only heard them. [R. I, 90.] Short nevertheless identified Walker at trial as the person who fired the shot [R. I, 84.], and described Vaughan’s reaction when shot as follows:
When the door came open, why, he was dancing this jig, and he stepped back up on the side of the bank, and just about that time I heard a shot, and then I seen him jump off this bank there, and he just fell flat on his chest. [R. I, 84.]3
Dr. Leo Davenport, the State’s examining pathologist, repeating what he wrote in Vaughan’s autopsy report, described Vaughan’s death from the bullet wound as “almost immediate.” [R. I, 194.] Baren-tine’s testimony supported the State’s theory that he and Walker engaged in a shootout after Walker shot Vaughan. [R. I, 194.]
This testimony, plus ballistics evidence linking the Smith & Wesson revolver allegedly found near Walker to the bullet in Vaughan’s heart, represented the essence of the State’s case. Walker’s counsel put on an insanity defense which the prosecution easily discredited. The jury deliberated just twelve minutes, found Walker guilty, and sentenced him to death.
On appeal, new attorneys assisted Walker’s trial counsel. The Arkansas Supreme Court reversed the conviction, holding that the State’s use of testimony by Officer Vaughan’s widow as to the kind of father and husband Officer Vaughan had been was not only irrelevant, but also prejudicial to Walker. Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965).
C. Judge Kirby’s Rulings on Crucial Matters in Walker’s Second Trial.
At a pretrial hearing, Walker’s counsel moved to disqualify Judge Kirby as grossly prejudiced. Counsel called three ministers affiliated with the Markham Street Baptist Church in Little Rock, who had become acquainted with Walker at religious services held in the jail. They testified that when Walker asked to become a member of their church they went to Judge Kirby’s office to request that Walker be allowed to go to the church to be baptized. Testifying about the exchange the ministers had with Judge Kirby, Reverend Ray Branscum stated:
We came to the judge's office and made our request known here to Judge Kirby. Judge Kirby expressed himself in saying that he didn’t have any confidence in James’ profession [i.e., of faith] and that he had killed a man, but he did, in turn, make the statement to Mr. Hal-lum [the chief deputy] that he was going to grant the request but he wanted him heavily guarded and if James made a move to shoot him down, because he didn’t want him brought back to him because, he intended to burn the S.O.B. anyway. [R. II, 83.]
The testimony of the two other ministers substantially paralleled that of Reverend Branscum.
In response to this testimony, Judge Kirby said:
I wouldn’t say I didn’t say it, but I certainly misrepresented it if I said it. I have nothing to do with burning him. It is up to the jury whether or not he gets that sentence. All I have to do is call the shots as I see them and givehim [sic] a reasonably fair trial. It is not up to me to burn him or punish him. If it was, we wouldn’t have to have this trial. [R. II, 86 (emphasis added).]
Judge Kirby overruled the request for re-cusal, as well as a serious motion for change of venue resting upon undue and prejudicial newspaper and broadcast publicity. [R. II, 30.]
Early in the trial Judge Kirby expressed his view of Walker’s rights by stating to the potential jurors at the inception of voir dire:
By way of explanation, I might say to the jury that this is the second time this case has been tried, or will be the second time. Mr. Walker was tried once and *1256convicted and the Supreme Court reversed it and sent it back here for retrial, and this is the retrial, ladies and gentlemen. [R. II, 147-48.]
Judge Kirby overruled defense counsel’s objections that the statement prejudiced Walker’s second trial. [R. II, 149.]
Near the beginning of the prosecution’s case, the prosecutor sought to read the first trial testimony of two very important witnesses, Linda Ford and Mary Roberts, rather than calling these witnesses in person. The prosecutor asserted that these witnesses were absent and could not be subpoenaed. Defense counsel stated that both women could be found nightly in Little Rock nightclubs. Defense counsel pleaded for a thirty-minute recess to obtain witnesses who could prove the women were in the Little Rock area. The court rejected this plea. The damaging testimony from Linda Ford was read into evidence without an opportunity for adequate new cross-examination. The prosecutor also read the prior testimony of Mary Roberts relating that she saw nothing of the shooting.
The devastating effect of Judge Kirby’s ruling on this matter becomes even more apparent after examining the testimony that would have come before the jury had Judge Kirby required the State to produce its witnesses. At Walker’s first habeas hearing, Mary Roberts testified that Vaughan fired the first shot and that she never saw Walker fire or even aim his gun. [H. I, 89.] She further stated that between the first and second trials she had informed the police that she intended to tell what really happened and change her testimony at Walker’s second trial. [H. I, 75-76, 124-25.] She testified that North Little Rock police impliedly suggested she leave town before the second trial. [H. I, 82, 97-102.] Roberts also stated that on several occasions police officers had intimidated her regarding the Walker case. [H. I, 90.]
The majority’s suggestion, supra at 1247 n. 18, that the defense might have subpoenaed Linda Ford and Mary Roberts ignores two vital considerations — (1) that it was the prosecution’s obligation to present this testimony in a “live” form and (2) that the defense may not have known then that Roberts had been pressured to leave town by police and that she intended to give testimony which would tend to exonerate Walker. This information surfaced only at the subsequent habeas proceeding in federal court.
We relate these matters not to establish that the police or the prosecutors necessarily suppressed this evidence, but to emphasize the crucial nature of Judge Kirby’s ruling denying Walker’s counsel a recess to enable them to demonstrate that the witnesses were available in the Little Rock area. Had defense counsel been permitted to so demonstrate, the prosecutor would either have had to locate Linda Ford and Mary Roberts during the trial and place them on the stand, or forgo their testimony altogether.
Prior to the second trial, the defense sought and obtained court permission to submit the three revolvers seized at the scene of the shooting (the snub-nosed .38 caliber Smith & Wesson, the .38 caliber Colt found in the Oldsmobile, and the .38 caliber, four-inch-barrel Smith & Wesson allegedly found underneath Walker) to Stanton O. Berg, a noted firearms examiner from Minneapolis, Minnesota. Judge Kirby entered an order directing the defendant to “file with the Clerk of this Court as part of the record and proceedings herein the written ballistics report of said firearms examiner, and to furnish a copy to * * * [the] Prosecuting Attorney.” [R. II, 24-25.] The prosecutor and defense counsel approved the order as to form. [R. II, 25.]
Berg’s ballistics report cast doubt on a critical part of the State’s case: the identification of the .38 caliber Smith & Wesson revolver found underneath Walker as the murder weapon.4 Although the defense *1257complied with the terms of the order, the jury never received this evidence. Judge Kirby, despite his pretrial order making the report part of the record, and the pretrial approval of both parties to the form of the order, prohibited the defense from reading the report into evidence. In reaction to Judge Kirby’s ruling, Walker’s attorney stated:
At this time we want the record to show that the defendant relied in good faith on the Order made by the Court directing us to produce and deliver this ballistics report, that we complied fully with the Order of the Court and delivered a copy to Mr. Jernigan [the prosecuting attorney] and filed a copy with the Clerk, as the Court directed, to become a part of the record and proceedings; and this defendant is a pauper, that he doesn’t have money to bring an expert and keep him down here for a week from Minneapolis, Minnesota. We had no way of knowing just when we would need [Berg], and the Court, just day before yesterday, refused to allow us 30 minutes delay to locate our witnesses. The only alternative we would have had would have been to spend thousands of dollars in keeping an expert here a week and bring him that distance when we, in good faith, relied upon the order that this court had made. [R. II, 848-49].
D. The Prosecutor’s Evidence at Walker’s Second Trial.
Prior to Walker’s second trial, his counsel sought and obtained ballistics evidence in the possession of the prosecution. Contrary to Judge Kirby’s comment that the defense merely wanted “to make the prosecutor divulge his case” [R. II, 52], the ballistics evidence conclusively demonstrated that none of Barentine’s shots wounded Walker. This disclosure destroyed the State's entire theory at the first trial, and forced the prosecution to present a different theory. The prosecution now theorized that Walker, firing first, shot Vaughan in the heart and that Vaughan, fatally wounded, fired his revolver six times, wounding Walker five times.5
To support its new theory, the State adduced essentially the same evidence as at the first trial. The prosecution read Linda Ford’s testimony from the first trial that Walker started firing at Vaughan. Aided by Judge Kirby’s exclusion of the defense’s ballistics report, the prosecution introduced its own ballistics evidence in an attempt to establish that the Smith & Wesson .38 caliber revolver allegedly found underneath Walker fired the fatal bullet. To support its theory that Vaughan, fatally wounded, could have shot Walker, the prosecution called Dr. Leo Davenport, the State’s examining pathologist, who testified that his statement in Vaughan’s autopsy report that death was “almost immediate,” meant that Vaughan died anywhere “from a minute to a few minutes” after he was wounded. [R. II, 759.]
E. Walker’s First Habeas Corpus Proceeding — The Suppressed Aider-man Testimony.
At Walker’s first habeas hearing, Aaron Paul Alderman appeared as a witness in support of Walker’s petition. Alderman the second cabdriver to arrive on the scene, was an eyewitness to the shooting. Following the shooting, he gave North Little Rock police his statement. [H. I, 146.] A month or two after the shooting incident, Alderman moved to Lakeland, Florida. He stated that he had called the criminal court or the prosecuting attorney’s office before the first trial to advise of his availability as a witness. [H. I, 169-70.] Alderman was *1258never called as a witness and, in fact, never received notification of either of Walker’s trials.
In our view, Alderman’s testimony completely undermines the prosecution’s theory that Walker shot Vaughan and that Vaughan, with a fatal bullet wound to his heart, wounded Walker five times. Moreover, the evidence establishes that either the prosecutor or the North Little Rock police suppressed Alderman’s crucial testimony.
Alderman testified that on the night of the shooting incident, he drove Ford and Roberts to Walker and Kumpe’s motel. When they arrived, Kumpe was standing outside. [H. I, 134.] Ford left the taxicab and went into one of the motel rooms. [H. I, 134.] Kumpe, brandishing what Aider-man described as a “.38 Police Special” with a four- or five-inch barrel, told Aider-man to leave. [H. I, 134.] At this point, Walker, Kumpe, and Ford apparently got into the white Oldsmobile and drove away. Roberts, who remained in Alderman’s cab, asked Alderman to follow the Oldsmobile. Alderman, upon learning from Roberts that Kumpe and Walker had been involved in a barroom shooting incident earlier that evening, informed his dispatcher via his taxi radio. The dispatcher asked Alderman to follow the Oldsmobile and said he would relay the information to the police. [H. I, 135.]
Alderman followed the Oldsmobile, but soon realized that his cab could not keep pace and radioed for assistance. Thomas Short, another cabdriver, heard Alderman’s call, and joined in pursuit. Short arrived at the scene of the shooting just behind the two police cars and Alderman arrived approximately two to three minutes behind the police. Shortly after Alderman arrived on the scene, Barentine shouted at him to shut off his headlights and move the car. [H. I, 151-52.] Alderman reached into the cab, turned off the lights, moved the cab slightly, and ran behind one of the parked police cars. Alderman stated that both police cars had their headlights on. [H. I, 154.] Alderman saw Vaughan approach the passenger’s-side door of the Oldsmobile and say to Walker, “get out of the car with your hands up[.]” [H. I, 140.] Alderman saw the door open and heard Vaughan shout, “Hold it, he’s got a gun.” [H. I, 147.] Then the shooting began.
Alderman testified that he saw Vaughan fire at Walker. [H. I, 155.] Alderman stated that after four or five shots, Vaughan remained standing. [H. I, 142, 148.] In fact, Alderman stated that Vaughan remained on his feet after Walker had fallen out of the Oldsmobile. [H. I, 142, 148, 157.] The shooting subsided for a moment, and then Alderman heard one more shot that sounded like a shot in a barrel or pipe. [H. I, 141.] Vaughan took a few steps back after this shot, and fell forward on his face. Alderman testified that when the shooting began, he saw Kumpe go under the Oldsmobile. [H. I, 142.] After the shooting, Barentine told Kumpe to get out from under the car. Kumpe started to run, but Barentine fired twice and stopped him.
Alderman approached Walker and Vaughan, both lying beside the Oldsmobile. Alderman stated that it was he who first rolled Walker over. [H. I, 163.] He said that Walker held a snub-nosed pistol in his hand. Upon checking the chamber, Aider-man discovered the gun was fully loaded. [H. I, 143, 165.] Alderman took the gun from Walker and stuck it in his belt. [H. I, 143.] Alderman went over to Vaughan, turned him over and checked his gun and discovered that all six shells had been fired. [H. I, 143-44, 165.] After picking up Vaughan’s gun, Alderman gave both guns to a police officer.
As Alderman walked away from the two wounded men, he stated that he saw another gun near the rear end of the Oldsmobile. [H. I, 145.] He testified that this gun lay where Kumpe had been during the exchange of gunfire. [H. I, 145.] Alderman stated that he pointed the gun out to an officer rather than picking up the gun himself. He stated that it looked like the same gun that he had seen Kumpe brandish at the motel. [H. I, 148.]
III. The Ends of Justice Require That We Reconsider The Trial Judge’s Expressed Bias Against Walker.
First, Judge Kirby stated that he “intended to burn” Walker, and then he explained that if it were up to him he would not give Walker a trial.6 Nevertheless, Judge Kirby ruled that he could give Walker a fair trial. [R. II, 30.] In 1969, this court held that Walker had received a fair trial. Walker v. Bishop, supra, 408 F.2d at 1382. The majority today denies Walker a retrial, regardless whether the trial was *1259fair or not, for reasons of “finality.” We would hold otherwise. That Walker could be tried and convicted before an admittedly prejudiced judge is a stain on our criminal justice system, which ought not go uncorrected.
Due process requires “[a] fair trial in a fair tribunal.” In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Moreover, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). Can a trial before a judge who admits his deeply held bias against the defendant satisfy the appearance of justice? Can such a judge do justice? We think not.
In United States v. Brown, 539 F.2d 467 (5th Cir.1976), the Fifth Circuit considered the alleged prejudice of a trial judge who made pretrial statements similar to those made by Judge Kirby. In Brown, the trial judge said that he “was going to get that * * * nigger,” referring to the defendant, H. Rap Brown. Id. at 468. When Brown sought post-conviction relief pursuant to 28 U.S.C. § 2255, the district court denied relief on the ground that the record demonstrated that Brown had, in fact, received a fair trial.
The Fifth Circuit reversed, observing that “the truth pronounced by Justinian more than a thousand years ago that, ‘Impartiality is the life of justice,’ is just as valid today as it was then.” Id. at 469. The court concluded:
The judge’s statement did not comport with the appearance of justice, and it cannot be said from the record alone that appellant received a fair trial. Accordingly, the conviction and sentence must be vacated. [Id. at 470.]
Here, the record discloses a good deal more about the trial judge’s bias than did the evidence in the Brown ease. In addition to the testimony of members of the clergy regarding Judge Kirby’s expressed prejudice, the record contains the judge’s own statement that, in effect, he considered the forthcoming trial unnecessary. Judge Kirby’s statements do not comport with the appearance of justice.
Judge Kirby’s prejudice continued to manifest itself throughout Walker’s second trial. Having presided over Walker’s first trial, Judge Kirby knew the weaknesses of the prosecution’s case. He knew that the prosecution’s case rested in large part on Linda Ford’s conclusory statement at the first trial that Walker “started firing,” and on the prosecution’s ballistics evidence that the gun allegedly found underneath Walker fired the fatal bullet. Judge Kirby’s rulings on these critical evidentiary matters allowed the prosecution to present the testimony of Linda Ford and Mary Roberts free from cross-examination on the State’s new theory, and to present its own ballistics evidence unrebutted by Walker’s ballistics expert’s report.
We do not believe an unprejudiced judge would have denied Walker’s counsel a thirty-minute recess to establish that Ford and Roberts were available as witnesses. We believe an unprejudiced judge would have abided by his prior ruling that the defense ballistics report, following its disclosure to the prosecutor and judge, would remain part of the “record and proceedings,” and that an unprejudiced judge would have permitted the jury to consider the report. After all, counsel for Walker and the State approved as to form Judge Kirby’s pretrial ruling which ordered the Berg report made part of the record. We believe an unprejudiced judge would, and properly could, have ruled that the State’s approval of the order making that report part of the record amounted to a stipulation to its admissibility-
There can be no justification for Judge Kirby’s changing his ruling. He knew that Walker lacked sufficient financial resources otherwise to avail himself of the information contained in the Berg report, which cast doubt on the validity of the State’s crucial ballistics evidence. Whether the Berg report constituted hearsay is irrelevant in the context of this case. The focus of our inquiry is not on the correctness of Judge Kirby’s evidentiary rulings, but rather on his bias and prejudice as reflected in his rulings.
Judge Kirby’s defense that it was not up to him “to burn or punish [Walker],” is no defense at all. First, as a general rule, no one can dispute that a biased judge can influence a jury in countless ways. Moreover, and more important to the case at bar, Judge Kirby’s rulings had an undeniably overwhelming impact on the jury’s verdict.
The prior opinions denying Walker’s ha-beas petition do not address Judge Kirby’s prejudice in this context. In its opinion dismissing Walker’s first application for habeas relief, the district court devoted five *1260paragraphs to . the prejudice issue. The court stated that, even assuming that Judge Kirby believed prior to the second trial that Walker was guilty and that he should be sentenced to death, “blatant, subjective prejudice of that sort is not enough to require a judge to disqualify himself in a jury case.” Walker v. Bishop, supra, 295 F.Supp. at 773. ■ The court did not discuss any of the trial judge’s rulings and their effect on the fact-finding process. Moreover, the court did not specifically refer to Judge Kirby’s “burn the S.O.B.” comment. The district court did remark that it would have been better had Judge Kirby not made some of his comments to the jury, but the court concluded that these comments did not amount to a denial of due process.
On appeal, this court’s 1969 panel discussed the trial judge’s prejudice more extensively, but, like the district court, did not discuss the specific effects of any of Judge Kirby’s rulings. In reference to Judge Kirby’s “burn the S.O.B.” comment, the panel remarked, “[t]he alleged statement * * * if made, could at the very most be construed to indicate the judge's feelings that the defendant was guilty and any such innermost thoughts on the part of the judge constituted no cause for his disqualification.” Walker v. Bishop, supra, 408 F.2d at 1382. The panel said that, on a canvass of the entire record, it appeared that “at the very worst the court might have shown some irritation at defense counsel’s trial tactics[.]” Id. The panel also adopted language from the Arkansas Supreme Court’s opinion upholding the conviction, to the effect that “the trial court conducted the trial in an exemplary manner and without any bias or prejudice toward the accused.” Id., quoting Walker v. State, supra, 408 S.W.2d at 912.
Neither of the two prior opinions which addressed the prejudice issue inquired whether Judge Kirby’s prejudice affected the jury’s fact-finding. We now conclude that Judge Kirby’s prejudice did infect the fact-finding process. Judge Kirby refused to grant a thirty-minute recess to the defense so that they might show that Ford and Roberts were present in Little Rock, and he refused to allow the Berg report into evidence, although he had previously ruled that the report would be made part of the record. These crucial rulings, in light of Judge Kirby’s pretrial admission of prejudice against Walker, conclusively demonstrate that his prejudice distorted the fact-finding function of the jury.
In short, Judge Kirby admitted he was prejudiced, and his actions supported his words. Judge Kirby’s prejudice permeated Walker’s entire second trial, thus depriving him ,of his constitutional right to a fair trial.
IV. The Ends of Justice Require Habeas Relieffor the State’s Suppression of Alderman’s Testimony.
Aaron Paul Alderman, the second cabdriver to arrive on the scene, possessed vital eyewitness information about the shooting. According to Alderman, Walker lay wounded by the side of the Oldsmobile while Officer Vaughan remained standing. Alderman testified that he was the first person to reach Walker after the shooting and that Walker held only one gun — the unfired, fully loaded, snub-nosed pistol. Alderman’s testimony undoubtedly constituted the strongest evidence for the defense.
At Walker’s first habeas hearing, Aider-man testified that following the shooting he gave a statement to the police. Several police officers corroborated this part of Alderman’s account. Both Captain Knight and Lieutenant Gilbert testified at the ha-beas hearing that they saw Alderman after the shooting at the prosecutor’s office when statements were being taken. [H. I, 198, 199, 285.] Although neither man could confirm that Alderman actually gave a statement, their uncontroverted testimony placed Alderman with the other witnesses from whom statements were taken. From the record, it must be deemed established that someone took Alderman’s statement. See Walker v. Bishop, supra, 295 F.Supp. at 779.
Alderman testified that he contacted the prosecution a few months after the shooting to report his new Florida address. He was told that if he were needed he would be contacted. [H. I, 170.] The prosecution never contacted Alderman; the prosecution never called Alderman to testify; the prosecution never even informed defense counsel of Alderman’s existence or whereabouts.
At Walker’s first habeas proceeding, the State announced that the files containing the statements of Alderman, Ford, and Roberts had, unaccountably, been “lost.” From these circumstances, a clear and obvious conclusion follows: The police and the *1261prosecution recognized Alderman’s importance and attempted to suppress his testimony.7 But at this, at least, they were unsuccessful. Fulfilling the poet William Cullen Bryant’s prophecy that “truth, crushed to earth, shall rise again,” Alderman’s testimony finally surfaced at Walker’s first habeas hearing.
In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court held that a prosecutor has the duty to disclose exculpatory evidence to the defendant, even absent a request by the defendant, when the evidence “is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed[.]” Id. at 110, 96 S.Ct. at 2400. The Supreme Court went on to set forth the standard for evaluating the omitted evidence:
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. [Id. at 112-13, 96 S.Ct. at 2401-02 (footnote omitted).]
Alderman’s testimony at Walker’s first habeas proceeding indicated that Alderman had served in the military police while in the service during the Korean War. Aider-man, a disinterested observer in good position to view all of the events, testified at length and in detail. Both police cars had their lights on and Alderman testified that he could see all of the participants in the shooting well except for Kumpe during the time when Kumpe was under the Oldsmobile. [H. I, 141-42, 154, 159.]
We recognize that at Walker’s first habe-as proceeding the district court largely discredited Alderman’s testimony. See Walker v. Bishop, supra, 295 F.Supp. at 779. It is not this court’s function to evaluate the credibility of witnesses. By the same token, the function of the district court at Walker’s first habeas proceeding was not to judge Alderman’s believability under ordinary credibility standards. Under Agurs, the proper test is whether a jury might have credited Alderman’s testimony to such an extent as to create a reasonable doubt in the minds of the jurors. To this end, we note the following testimony that corroborated Alderman’s account:
1) At both trials, Thomas Short, the other cabdriver, confirmed Alderman’s account of his radio conversations with the dispatcher. [R. I, 77.] [R. II, 542.]
2) Alderman’s description of the fatal shot comports with that of Short. Aider-man said that he heard a shot, and that Vaughan took two or three steps backward and fell on his face. [H. I, 142.] Short said that Vaughan “was dancing this jig, * * * I heard a shot, and then I seen him jump off this bank there, and he [Vaughan] just fell flat on his chest.” [R. I, 84.]
3) Alderman’s testimony that the gun found in Walker’s hand, the Smith & Wesson snub-nose, was fully loaded accords with all other testimony.
4) Alderman testified about police hostility toward Walker following the shooting— one officer “stomped” on Walker [H. I, 145]; another officer cursed at Walker and threatened to kill him. [H. I, 144.] The gist of Alderman’s testimony was confirmed by Lieutenant Marvin Gilbert, a North Little Rock police officer, who testified that he had to disarm some officers to protect Walker and that police officers displayed great resentment toward Walker. [H. I, 287-288.]
5) Some important corroboration of Alderman’s account exists in Officer Baren-tine’s initial report to the police department. In that report, made six or seven hours after the incident, Barentine said Vaughan shot Walker five times. The report makes no mention of Walker ever firing at Barentine. [H. I, 179, 380-81.]
Thus, in our view, no basis exists for a ruling that this important but suppressed testimony so lacks credit that it would make no difference to a jury. Indeed, from the record we think it clear, that members of a jury could, and probabiy would, have credited Alderman’s testimony at least to an extent sufficient to create a reasonable doubt of Walker’s guilt. The police and the prosecution suppressed Alderman’s account of the shooting. Their actions consti*1262tute an egregious denial of Walker’s constitutional rights.
V. The Evidence From the Entire Record Does Not Show Walker to Be Guilty Beyond a Reasonable Doubt.
As we have noted, our discretionary consideration of Walker’s successive application for habeas relief is premised on serving the ends of justice. Absent a substantial disruption of the jury’s fact-finding process, constitutional violations by themselves might not warrant relief at this late date. In this case, however, we are not confronted with so-called “technicalities”; we are not setting aside the conviction of an obviously guilty man on the basis of a “loophole.” Here, the violations of Walker’s constitutional rights completely warped and distorted the jury’s fact-finding process. The jury’s verdict is tainted, and, in the interest of justice, cannot stand.
The evidence of Walker’s guilt is extremely weak, consisting almost entirely of tainted testimony admitted into evidence by a prejudiced judge. Moreover, Walker's conviction is based upon the almost incredible theory that Vaughan, having suffered a fatal wound to his heart, fired five bullets into Walker. After considering the entire record, including the ballistics evidence that Judge Kirby kept from the jury and the suppressed testimony of Alderman, we strongly believe that no rational, informed, and impartial trier of fact could find Walker guilty beyond a reasonable doubt.
The majority, supra at 1246, relying on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), concludes that the evidence, seen in the light most favorable to the prosecution, establishes guilt beyond a reasonable doubt.
At the same time, the majority, supra at 1245, asserts that Walker’s argument “is essentially based on * * * conclusions drawn most favorable to Walker,” and that this dissent accepts such conclusions. We must reject that characterization of our review of the record, inasmuch as we document each item of crucial evidence with precise references to the record.
We hold a different view from the majority on what is to be reviewed under the “ends of justice” standard as set forth in Sanders. The majority examines only the second trial record, and uncritically accepts the State’s contentions. The dissent examines as objectively as possible the record as a whole; that is, the records of both trials and both habeas proceedings.
In the typical case, the inquiry on appeal is whether, considering in the light most favorable to the prosecution all the evidence the jury heard, a reasonable finder of fact could have found the defendant guilty beyond a reasonable doubt. But this case is different. The actions of the police, the prosecution, and the trial judge improperly kept the jury from hearing the evidence in Walker’s favor. Therefore, the inquiry here must comprehend all the evidence — not only what the jury heard, but also what — to Walker’s great prejudice— the jury was kept from hearing. We believe that, looking at all the evidence from both trials and both habeas hearings, no reasonable trier of fact could have found Walker guilty beyond a reasonable doubt.
With respect to the crucial testimony of Linda Ford, we are in as good a position as was the jury at the second trial to evaluate credibility. For that jury did not hear Linda Ford testify; it heard only a reading from the transcript of her testimony at the first trial. Ford’s testimony, as recorded in that transcript, fails in several critical respects to support the theory which the State advanced at the second trial. Ford testified that Walker had his pistol (singular, not two pistols) out; that Walker started firing (a conclusion admittedly not based on direct observation, see supra, at 1254); and that she did not know how many times Walker fired the gun. This report came, moreover, from a seventeen-year old girl who admitted having had at least five drinks during the night in question. [R. II, 608-09, 611-12.]
That is in essence the testimony upon which the State relied to convict Walker and upon which the State must now rely in arguing that the “ends of justice" will not justify reaching the merits of this subsequent application for habeas relief.
The Supreme Court noted, in setting forth the “ends of justice” as the test by which to evaluate successive habeas corpus petitions, that that test “cannot be too finely particularized.” Sanders v. United States, supra, 373 U.S. at 17, 83 S.Ct. at 1078. In this case, the defendant faced trial before a prejudiced judge who in ways enumerated in this and prior opinions may have weighted his evidentiary rulings to obtain a conviction. The police suppressed the important Alderman testimony. At the first trial, the prosecution suppressed bal*1263listics evidence and prosecuted Walker on the theory that Walker shot Vaughan and that Barentine shot Walker. In support of this theory, the prosecution produced testimony that Vaughan’s death was almost immediate. At the second trial, after the ballistics evidence became known to Walker’s counsel, the prosecution devised another theory — that Walker shot Vaughan not with the gun found in his hand, but with another gun which was found lying at the scene, and that Vaughan, with a bullet in his heart, then fired five bullets into Walker. To support this theory, the prosecution presented the altered hypothesis of the pathologist witness that Vaughan “could have” fired repeatedly after having been shot in the heart. [R. II, 760.]
Given all these circumstances, we believe that the “ends of justice” require a review of the whole record to determine whether the evidence indeed supports Walker’s conviction.
Testimony at both trials by prosecution witness Thomas Short indicates that Vaughan did no shooting after being shot. We have cited his testimony from the first trial, supra at 1255. In the second trial he repeated his testimony in these words:
Q You say you saw the police officer [Vaughan] kind of jump and try to back up a little bit [after the opening of the right door of the Oldsmobile].
A Yes, Sir.
Q And then you heard a shot?
A ' Yes, Sir.
Q What happened to the officer?
A Well he raised himself off the ground and he — and then his feet flew from under him and he fell on his face. [R. II, 518-19.]
This evidence and common sense suggest that the pathologist’s opinion that Vaughan could have fired the shots into Walker amounts to speculation without support in the record.
Alderman’s postconviction testimony, to which reference has already been made, clearly establishes that Walker did not shoot Vaughan. We reproduce that testimony in part:
Q Alright: after the shots momentarily ceased what did you see happen to Walker’s body?
A He slumped over forward and then to the right on the ground and stretched out—
Q Alright,—
A in a prone position, I would say.
Q At this time was Vaughan on his feet?
A Yes, sir, he definitely was.
Q Alright, now, you described a shot that went “boom”?
A Yes, sir.
Q Did that occur after Walker had fallen from the car?
A Yes, sir, Walker was laying face down on the ground.
Q After this shot that went “boom” did Vaughan immediately fall?
A He taken two steps backward or three and fell forward on his face. [H. I, 142.]
Mary Roberts testified at the first habe-as hearing that Vaughan, not Walker, fired the first shot, thus undermining the State’s theory that Walker shot Vaughan and then Vaughan shot Walker:
Q Do you know who fired the first shot there at the scene?
A Yes, sir.
Q Who fired it?
A The officer that opened the passenger side of the car.
Q Do you know how many times this officer fired this gun?
A No, sir.
Q Before he was killed?
A No, sir. [H. I, 89.]
That evidence is part of the whole record. We have examined the whole record to determine whether the ends of justice permit reconsideration of the merits of Walker’s second petition. That whole record serves to nullify completely the State’s extremely tenuous theory that Vaughan, with a bullet in his heart, shot Walker five times. For if Vaughan first shot Walker five times and seriously wounded him, as the record shows, no reasonable basis exists for a factual determination that Walker thereafter shot Vaughan, particularly when, as testified by Alderman, Walker lay on the ground outside the car when Vaughan received the fatal single bullet to his body.
VI. Conclusion.
After painstakingly reviewing the record, we stand convinced that this court erred *1264fifteen years ago in affirming the district court’s denial of Walker’s petition for habe-as relief. We believe that Walker’s conviction constitutes a miscarriage of justice: Judge Kirby’s prejudice deprived Walker of a fair trial, and the State withheld crucial evidence. The record, including the evidence that the police and the prosecution wrongfully suppressed and the evidence unfairly excluded from the jury’s consideration by reason of Judge Kirby’s prejudice, demonstrates that no rational, informed, and impartial trier of fact could have found Walker guilty.
Moreover, the taint of Walker’s two unfair trials, which we think a careful analysis of the full record demonstrates, cannot be ignored or concealed by reference to this court’s or the district court’s prior opinions, for it is apparent that the prior panel of this court erred in its analysis of the record.
At least in part, the majority’s decision to deny Walker relief rests on the perceived importance of finality, notwithstanding that on the same record, relief might or should have been granted when the case first came before this court in 1969. While we share the majority’s belief that repetitive habeas petitions should ordinarily be denied, that rule cannot and should not be absolute. For in the exceptional case where a grievous miscarriage of justice has occurred, that rule if inflexibly applied means that because justice has been delayed, justice must be denied. Such an application, we cannot here abide.
It is not too late to right the wrong committed against Walker. The “Great Writ” is “both the symbol and guardian of individual liberty.” Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 1551, 20 L.Ed.2d 426 (1968). It is “a bulwark against convictions that violate ‘fundamental fairness.’ ” Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1570, 71 L.Ed.2d 783 (1982) quoting Wainwright v. Sykes, 433 U.S. 72, 97, 97 S.Ct. 2497, 2511, 53 L.Ed.2d 594 (1977) (Stevens, J., concurring). We recognize that the passage of years will, undoubtedly, make it difficult, if not impossible, to retry Walker. Recently, however, Chief Justice Burger reiterated that the lapse of many years should not defeat the possibility of habeas relief if “the petitioner can demonstrate a miscarriage of justice or a colorable claim of innocence.” Spalding v. Aiken, — U.S.-, 103 S.Ct. 1795, 1795, 76 L.Ed.2d 361 (1983) (denial of certiorari) (Statement of Burger, C.J.).8
In this case, the constitutional protections guaranteed to every one of us were subverted at Walker’s second state-court trial. It matters not whether James Dean Walker is a “good” or “bad” person; the test of our judicial system is its capacity to do justice to all persons, regardless of their station in life.
Accordingly, we would reverse and remand with directions to the district court to issue the writ if, within thirty days following the issuance of our mandate, the State of Arkansas had not announced its intention to retry Walker within a reasonably expeditious time thereafter.
ADDENDUM
The parties are entitled to a word of explanation relating to the second en banc hearing on this habeas case. On September 15, 1983 at a general meeting of the court, there was discussion of the possibili*1265ty that a rehearing en banc might be requested, and with two new judges, conceivably a contrary result be reached, after the opinion and dissent as they were then prepared were filed on behalf of the seven members who heard the case. After this discussion, the court by a 6 to 3 vote amended its rules relating to en banc procedures to provide:
that [a] judge who is appointed prior to the time that an opinion is released by the court * * * may make a request to participate, and if so, then the submission should be vacated and the case resubmitted either on the briefs or oral argument.
Following that rule change and an election to participate in the case by newly appointed judges (who had not suggested or initially sought the rule change), the clerk of court entered the following order on September 29, 1983:
On the Court’s own motion, the en banc submission of September 15, 1982, on the habeas corpus issue of this appeal is hereby vacated and the case is reset for argument to the Court en banc on Tuesday, November 29, 1983, in St. Louis, Missouri.
The case was then reargued en banc.
Before LAY, Chief Judge; HEANEY, BRIGHT, ROSS MCMILLIAN, ARNOLD JOHN R. GIBSON, FAGG, BOWMAN, Circuit Judges, En Banc.
ORDER
•The petition for recall of mandate, filed March 15, 1984, is hereby granted.
The case is remanded to the district court with instructions to take evidence from Russell Kumpe and his former wife, Peggy Davidson, relating to Kumpe’s alleged firing of a gun at or near the time that Officer Vaughan was shot on the night of April 15-16, 1963. That evidence is to include the diary entry apparently dated January 16, 1968, relating to that incident.
On remand, the State may offer as evidence the recorded confession of Walker allegedly made after his first trial. Walker may offer evidence to explain that alleged confession.
The remand proceedings may be limited to the receipt of the evidence mentioned by both sides in their papers with respect to the recall of mandate, including the Kumpe statements and the recorded confession of petitioner and any explanation thereof and such additional evidence as the district court in its discretion may deem relevant to these proceedings.
The district court should determine whether any of this evidence is credible enough to deserve the attention of a jury; whether the evidence would be admissible if a new jury trial were held; and whether the new evidence, when considered against the background of the existing record, sufficiently tips the balance of the “ends of justice” standard to require that a new trial be held. These findings should then be certified to this Court, sitting en banc, which can then consider, after briefing and oral argument, whether the new evidence, in the light of the district court’s findings, requires a new trial.
The district court is directed to expedite its hearing and the making of appropriate findings.
. Sanders v. United States, 373 U.S. 1, 24, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting).
. Following the Sanders decision, Congress enacted a new statute regulating successive applications for habeas relief by state prisoners. This statute, now codified as 28 U.S.C. § 2244(b) (1976), provides:
When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier ap-
*1254plication for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.
Although this statute does not mention the "ends of justice” criterion, courts and commentators have interpreted the statute as enacting the principles announced in Sanders. See, e.g., Cancino v. Craven, 467 F.2d 1243, 1246 (9th Cir.1972); United States ex rel. Townsend v. Twomey, 452 F.2d 350, 354-55 (7th Cir.), cert, denied, 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972); 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4267, at 690 (1978); Williamson, Federal Habeas Corpus: Limitations on Successive Applications from the Same Prisoner, 15 Wm. & Mary L.Rev. 265 (1973).
. References to the record of Walker's first trial will be designated throughout this opinion as R. I, —; references to the record of Walker's second trial will be designated as R. II, —; references to Walker’s first habeas corpus proceeding will be designated as H. I, —.
For our discussion of the State’s theory at Walker’s second trial, see Section II. D., infra.
. This account undermines the State’s theory at the second trial that Vaughan, after being wounded in the heart, fired six shots at Walker, See page 1257 infra.
. The Berg report states in pertinent part:
8. State whether or not you performed a ballistics test on [the weapon allegedly found underneath Walker], and if so what test did you perform.
A. Yes — test bullets were fired and recovered and examined and compared microscopically.
9. Was this weapon test fired and the specimens compared with the fatal bullet removed [from] the body of officer Vaughan?
A. Yes.
10. What was the condition of this fatal bullet when received by you?
A. Very poor condition.
11. Would the present condition of this bullet make positive identification of the bullet difficult?
A. Yes it would. One side of this lead bullet is badly battered and scratched. The nose is badly scratched. One side of [the] bullet exhibits rifling marks. Two (2) land markings are visible and in fair condition. Three (3) *1257groove markings are visible of which two are damaged and the other is in fairly good condition. Because of the time elapse since it has been fired (almost 2lA years) areas of the bullet contains [sic] a light film of lead oxidation. All of these factors make positive identification difficult.
12. Were you able from your examination, notwithstanding the condition of the bullet to detect any disimilariiies [sic] in the fatal bullet and those test fired from the [revolver]? If so please list and describe [any] disimilarities [sic] noted.
A. No disimilaritiés [sic] were noted in the class characteristics such as number of lands and grooves and their widths, direction of twist etc. A quite a few disimilarities [sic] were noted in the individual characteristics. [Emphasis added.]
. The majority suggests (supra at 1247 n. 21) that the defense at the first trial knew or should have known that Vaughan, not Barentine, shot Walker. That assertion derives no support from the record. The plain fact is that the State offered the theory that Barentine shot Walker and did not produce the ballistics evidence at the first trial. The defense learned of the existence of this evidence only when the prosecutor finally divulged it before the second trial.
. For a complete quotation of Judge Kirby’s statement, see page 1255 supra.
. In so asserting, we are also mindful of the conduct of the police and the prosecution in withholding ballistics evidence at Walker’s first trial and in advancing the theory that Barentine, not Vaughan, shot Walker after Walker shot Vaughan.
. The majority suggests that we have misapplied the sufficiency of the evidence standard of Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789, by failing to examine the evidence in the light most favorable to the prosecution. In fact, we have neither reached nor decided the issue of the sufficiency of the evidence at Walker’s second trial to support his conviction. We have merely noted the weakness of the prosecution’s case, which relied principally on tainted testimony admitted into evidence by a prejudiced judge, and observed that the jury did not get to hear the important Alderman testimony.
Had Judge Kirby’s admitted prejudice not affected what evidence the jury heard, and had the police and prosecution not effectively prevented the jury from listening to Alderman’s version of the incident (which version the testimony of other witnesses confirms in many details), this court would not grant habeas relief to Walker. But that is not the situation. Walker has established violations of his constitutional right to a fair trial, and the whole record of all the proceedings in this case, including the two trials and the various post-conviction proceedings, demonstrates "a miscarriage of justice [and] a colorable claim of innocence.” Spald-ing v. Aiken, supra, 103 S.Ct. at 1795. We have not found it necessary or proper to reach or determine the sufficiency of the evidence to convict at the second trial, under the standards enunciated in Jackson v. Virginia, supra, when the whole record before us demonstrates that “the ends of justice,” Sanders v. United States, supra, 373 U.S. at 15, 83 S.Ct. at 1077, require habeas relief in this case.