specially concurring:
I concur in section one of the majority opinion which holds that the instruction on intent at Drake’s trial improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and that the Sandstrom error was not harmless.
I also concur in section two of the majority opinion which holds that Drake is entitled to a new sentencing hearing because of prosecutorial misconduct in closing argument at the penalty phase of Henry Drake’s trial.1 I write separately only to point out what I believe to have been the most fundamental and egregious error committed by the prosecution at Drake’s trial; the utilization of a theory of the Eberhart murder which was totally inconsistent with the state’s view of the crime presented at the trial of William Campbell. Despite the other errors which mandate that Drake be retried, I believe it is important to address this claim. The prosecutor’s totally inconsistent theories of the same crime at William Campbell’s and Henry Drake’s respective trials transgressed the Fourteenth Amendment’s requirement that a criminal trial be fundamentally fair.
I. FACTS
In order to put Henry Drake’s legal claims into proper perspective, it is necessary to examine what we know and do not know of the circumstances surrounding the death of Mr. Eberhart, the state trials of William Campbell and Henry Drake and events that have since come to light.
On the evening of December 5, 1975, the Defendant, Henry Drake, his girlfriend, Mary Carruth, and William Campbell, a friend who was living with Drake and Carruth at the time (TT 157-159),2 drove from Madison, Georgia, where the three were living, into Colbert, Georgia where Henry Drake’s mother and other family members *1471lived (TT 407). The defendant and his girlfriend dropped Campbell off across the street from the barbershop in Colbert so that he could get a haircut (TT 161-162, 360, 409) and then continued on to the house of the defendant’s mother (TT 410-411).
At about 5:00 p.m. Campbell was observed leaning on a car outside the barbershop (TT 283-284). At 6:00 p.m. he was no longer outside but the lights in the barbershop were on (TT 284).
At 9:00 p.m. that evening C.E. Eberhart, age 74, was found critically wounded on the floor of his barbershop (TT 290). He had received blows to the head from a clawhammer and a stab wound (TT 149-150). The floors and walls of the barbershop were smeared with blood as though an extended struggle had taken place (TT 290, 307). Mr. Eberhart was hospitalized but remained in a coma until his death several months later (TT 152-155).
Several days after the attack on Mr. Eberhart law enforcement officers went to the home of Defendant Drake, where Campbell had been staying, to search for Campbell and possible evidence (TT 122, 309, 358, 360). At that time Henry Drake was not considered a serious suspect in the Eberhart incident. Campbell was gone but a watch later identified as belonging to Mr. Eberhart was found in Campbell’s room in a dresser along with Campbell’s clothes and papers (TT 129, 133, 322). Campbell was arrested by Georgia authorities after he was located in Virginia. Only one week after the attack on Mr. Eberhart he had been arrested by Virginia police for shooting a woman during a robbery (TT 195, 197). Subsequently and only after being implicated by Mr. Campbell, Henry Drake was also arrested.
Drake was originally indicted along with Campbell, but due to a challenge to the grand jury made by Drake’s appointed attorneys he was reindicted and his case did not go to trial until one year after Campbell had been tried and convicted and sentenced to death for the murder and armed robbery of Mr. Eberhart.
A. William Campbell’s Trial
At his own trial Campbell claimed that he was getting a haircut from Mr. Eberhart when Drake came in and began beating the barber over the head with a hammer. Campbell testified that he tried to stop him but that Drake also struck him with the hammer when he did so (CTT 317).3
The jury obviously disbelieved Campbell’s version of the events as it convicted him of both the murder and armed robbery of Mr. Eberhart, and recommended the death penalty for the murder. See Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1978) cert. denied, 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1978).4
In his argument to the jury the prosecutor stated:
I think this evidence reflects and you can so find that Drake was pretty well known around Colbert and Campbell was to be the man to case the joint. I have no doubt in my mind that he probably helped Mr. Eberhart sweep the floor and he probably left and waited around and came back, probably real close, where he waited around there and then came back and Mr. Eberhart was fixing to close and Mr. Eberhart opened that door back up and letting them in. I think that right there is probably when he stuck that knife in him and that is when the struggle began. Yes, he is not as big a man as Mr. Eberhart and that is why they had one hellacious struggle. He was drinking, and his adrenalin glands were working, because he was smaller, and that is why he took the knife and stuck it in him and it weakened the old man and they fought____ Now, who did it, Campbell, Drake, and you know what I say on this *1472evidence, does it really matter which one, or the two, or if they were in it together. It is my thoughts on this evidence that this is the actual slayer, Mr. Campbell is, of Mr. Eberhart, because you see that no one knew who Campbell was, except some of the Deputy Sheriffs and very few people. You see Campbell told the GBI agent, “Yeah, I threw the hammer.” Now, why would he tell this, because he knew that he had handled that hammer and he felt like that there might be a fingerprint on it, and that was the way he was covering his tracks, to say that, Yes, I handled the hammer. The Barber Tools, he also stated that he handled those also, and he was covering his tracks again. Would you look at those poor little old barber tools. Who on earth would kill a man for a few little old barber tools. Look at that. Here they are, didn’t have anything, didn’t work for anything. He is the guy that would do a thing like this, to pick up those tools and carry them out of there with him, this garbage and I submit in a case of this nature that that is all that is, is garbage, that any man that would carry those little clippers out of there. Anyone that had gone through all of this and kill somebody and had to wash up and all, who after getting the money would take the time to stop to steal a few little old barber tools, except someone like William (Bill) Campbell that you have ever seen, nobody, nobody. You know the first thing we have to do is that we have to get the defendant present and put a motive in there and then we put him running. Campbell admits the entire case against him except that he didn’t do it, that Drake did it. I don’t believe that you ladies and gentlemen are going to buy that kind of story and say that, “You are right”, and set him free. What would he say on Drake’s trial? ... They are both a part of this crime of robbery and murder and there is no mistake about it, under the evidence.
(CTT at 343-44) (emphasis added). At the penalty phase of Campbell’s trial the prosecutor continued:
Your honor, please, there is one person who believes in capital punishment, and that is the murderer. He believes in capital punishment. He believes in it without a Judge or Jury or a public hearing where the friends and relatives of the victim and the public can attend. This Defendant believes in it for he similarly killed his victim, and then went to Virginia and attempted to do the same thing.
(CTT at 385).
B. Henry Drake’s Trial
Despite the jury’s rejection of Campbell’s account of the crime, one year later the State called him as its key witness in the trial of Drake and had him reiterate this same story (TT 167-70, 188). In Drake’s case, the state argued that “[he] Drake must have been the one who actually beat the victim” due to Campbell’s poor health. Drake v. State, 241 Ga. 581, 247 S.E.2d 57 (1978) cert. denied, 440 U.S. 928, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979).
William Campbell was the only witness in Henry Drake’s trial who implicated Drake in the murder and robbery of Mr. Eberhart; and his testimony was strikingly different from the account given by the other witnesses at trial.
Henry Drake and Mary Carruth both testified that after dropping Campbell off for his haircut, they drove to Drake’s mother’s house where they had supper and visited for about two hours (TT 381-82, 410). Drake’s mother, brother and brother-in-law all confirmed that Henry and Mary were at Drake’s mother’s that evening (TT 429, 432, 434). Drake and Mary Carruth further testified that they picked Campbell up across the street from the barbershop on their way out of town and that he told them that he had been in a fight with the barber (TT 352, 422).
Drake testified that about 3:00 a.m. that night Campbell woke him and wanted Drake to drive him back to Colbert because he left his knife and some barber clippers he took from Mr. Eberhart there. [Barber tools were found outside the barbershop (TT 366).] Drake refused to take him (TT *1473412, 413). The next day, Drake went back to his mother’s in Colbert in order to borrow a radio. It was then he found out the extent of Eberhart’s injuries. When he got back to Madison, he told Campbell how badly Eberhart was hurt. Campbell then told Drake to drive him to Atlanta (TT 414).
Campbell’s testimony, which covers over 100 pages of transcript, varied significantly from that of Mary Carruth and Henry Drake. The thrust of his testimony was that Henry, and Henry alone, robbed and murdered Mr. Eberhart and that Campbell himself was merely an innocent bystander who in fact tried to help the victim. However, Campbell’s story was not only difficult to believe in and of itself, it was also filled with contradictions and inconsistencies throughout.
To begin with, Campbell stated that after Drake let him out he hung around the laundromat for ten or fifteen minutes (TT 205). He then walked over to the barbershop. Mr. Eberhart was cleaning up but said he would cut Campbell’s hair after he finished sweeping up, so Campbell held the dustpan for him (TT 205).
At first Campbell stated that he and Eberhart did not converse while his hair was being cut (TT 212); however, on recross he admitted that he asked Eberhart for a job while he was cutting his hair (TT 245) [Campbell testified earlier that he had been looking for a job in Colbert, but no one would give him one. There was also testimony that Campbell had been a barber at one time (TT 366-67).]
When the State began questioning Campbell as to the defendant’s involvement in the crime, Campbell first stated that he did not see Drake in the barbershop but saw him only in front of the barbershop before and after he [Campbell] got his hair cut (TT 164-65). After considerable prodding by the District Attorney, Campbell changed his story and claimed that while he was having his hair cut, Drake came in with a black wig on [Campbell said he didn’t recognize him at first], walked around behind the barber chair and hit Eberhart in the head with the hammer (TT 168).
At Drake’s trial, Campbell said he watched Drake come in and walk around Eberhart. However, as Drake’s trial counsel brought out on recross, at his own trial Campbell testified that he did not know Drake was there until he heard Eberhart groan twice and turned around to see Drake hitting him (TT 246). Drake’s counsel also brought out on recross that Campbell did not mention any wig at his own trial (TT 243).
As to the wig, Campbell testified first that he did not know what happened to it after the beating (TT 170). Later, he testified that during the struggle Eberhart pulled the wig off Drake (TT 208, 249). Still later he said Drake wore the wig back to the car (TT 213).
On direct, Campbell said that when Henry came into the shop he told Eberhart that he was going to “rob him and take his money (TT 169),” but on cross examination, he said Drake did not say anything when he came in (TT 207).
Campbell claimed that he tried to stop Henry from hitting the old man at which time Henry hit him [Campbell] in the head with the hammer (TT 169, 208). In elaborating on being hit by Drake on cross examination, Campbell, already aware of the physical evidence the State was going to present from his own trial, related that when he was hit he fell out of the barber chair over near the door stating that “that’s where they got my blood stains, off the door” (TT 208).5 But Campbell’s story of falling by the door was inconsistent with testimony he gave at his own trial that Drake picked him up and set him by the door (TT 211). This testimony from the previous trial was also inconsistent with Campbell’s statement on cross that Henry did not touch him after hitting him with the hammer (TT 209).
Campbell’s testimony was particularly inconsistent as to the hammer itself. The *1474hammer was found in the back of a pickup truck located behind the barbershop and Campbell admitted that he threw it there (TT 175), but he had several versions as to where he threw it from. First he stated only that he picked the hammer up at the barbershop and threw it toward the truck (TT 175). On cross examination, he specified that he picked the hammer up off the barbershop floor as he was going out the door (TT 215), and that he did not know where Drake had gotten it from (TT 215). However, after being asked if he had ever said that he had found the hammer in Drake’s car, he changed his story and responded, “That’s right. As a matter of fact, he kept it in there all the time. He worked on that old car with it (TT 214).” Defense counsel then read Campbell’s testimony from his own trial in which he claimed that he found the hammer in Drake’s car and threw it “out of the ear (TT 216).”6 When asked to clarify which he had done, thrown it from the barbershop or thrown it from the car, Campbell changed his story for the third time. He claimed that Drake carried the hammer out of the barbershop, laid it down, then stepped on it so that it bounced back to near the door where Campbell picked it up (TT 216). He stated that he [Campbell] hid the hammer inside the car until he could get back to the door. At this point defense counsel gave up hope of getting a straight story about the hammer from Campbell and went on to something else. But further flaws in Campbell’s testimony continued to develop.
On direct, Campbell testified that after the incident in the barbershop he did not have any blood on his clothes and did not pay any attention to whether Henry had any blood on him (TT 172). But on cross and recross, he claimed that there was blood on his own shirt (TT 218, 248), saying that he threw the bloody clothes away, but then changing his story to say that Henry or Mary threw them away (TT 248-49).
On direct, Campbell testified that Mary Carruth was behind the barbershop somewhere during these events but that he did not know exactly where (TT 176). On cross, he testified that she was “at the door, beside the door ... around to the corner door,” and that she “come to the door (TT 219).”
Campbell testified that he, Mary Carruth and Drake walked to the car (TT 177) which was parked up the street at the store and then drove to the cemetery and drank a beer (TT 177, 220).7 He next testified that he went to sleep in the back seat and when he woke up they were back in Madison (TT 178). When asked, “Do you recall the next day?”, Campbell responded, “No, sir, Henry [Drake] told me about [it] ... the next day.”
Campbell went on to testify that the next day [Saturday] Drake told him that he [Campbell] would have to leave because the barber was expected to die (TT 179-86, 225). While being examined on direct as to this particular portion of events, Campbell was asked what Drake said. He responded, “He said they were looking for that barber to die ... was robbed that night. I didn’t know about it. He told me about it (TT 184).” When questioned further about what was said, he testified that “he [Drake] told me, ‘Bill, you’ve got to leave. I hate to say this, but you got to leave.’ I asked him why, and he said, ‘Well, what happened last night — they look for that old man to die — .’ I was pretty well drinking and I didn’t think the old man was hurt that bad (TT 185).” (Emphasis added, underlined portion is Campbell’s statement to the court.)
Campbell then testified that Drake drove him to Atlanta and he [Campbell] caught a bus to Norton, Virginia (TT 179-86, 226) where he shot a woman in the hip only a week later while robbing a salvage company (TT 195, 197). Campbell pled guilty to that robbery (TT 186).
*1475Georgia law enforcement officers picked Campbell up in Virginia and returned him to Georgia to face the Eberhart murder and robbery charges. En route Campbell made the following statement regarding the Eberhart killing; “[You] know when a fellow gets to drinking ... I didn’t mean to do it.’’ See Campbell v. State, supra, 240 Ga. 352, 353, 240 S.E.2d 828 (1977) (emphasis added).
Campbell’s criminal record at the time of Drake’s trial included pleas of guilty to two counts of sodomy in 1967 (TT 197), a plea of guilty to burglary in 1967 (TT 198), a conviction for robbery in 1969 which resulted in a life sentence subsequently reduced to twelve years (TT 198), a plea of guilty to the robbery in Norton, Virginia and convictions for the robbery and murder of Mr. Eberhart in 1976 for which he received a life sentence and the death penalty (TT 187, 199). Campbell testified that in all he had spent around twenty years in jail (TT 194).
In sum, the testimony offered by the state at Drake’s trial consisted of the following; an eye witness testified to seeing Campbell across the street from the barbershop at about 5:00 p.m. on the day of the crime. Blood scrapings taken from the handle of the murder weapon were found to be type A, Campbell’s blood type. On the other hand, the only physical evidence associating Drake with the crime was a knife found at the scene of the crime allegedly belonging to him. No finger prints taken at the scene were matched to Drake. The only testimony to place Drake at the barbershop or to implicate him in the murder or robbery was Campbell’s testimony, wholly inconsistent and contradictory testimony of an alleged accomplice who had a history of violent crime.
In closing argument in Drake’s case the prosecutor, Mr. Huff, the same district attorney who prosecuted Campbell’s case, stated:
Now ladies and gentlemen, I want to talk to you about one other factor. We saw Campbell; you saw him testify, and he talks like this (Mr. Huff is whispering); and the reason he talks like this is a combination of three factors. It’s true he lost his false teeth and I think that probably would have helped some. The other is his extreme emphysema that he has. According to officers, that he can’t walk even a distance that he doesn’t tire and have to sit down and bend over and heave, because when he exerts himself to the least amount, he is exhausted. And of course, the other reason that he is so used to talking low, it’s true, he has spent so many years in prison and that’s the way they talk. They don’t talk out loud in the prison system. They whisper. He doesn’t hardly know how to talk loud, only in a whisper. And I submit to you that Mr. Eberhart, even though he was seventy something years old, that he was a big man, close to 200 pounds, in good health, vigorous, and the testimony was that he led a very active life. And you look at those pictures„and you look what a terrific scuffle took place, and I say to you that under this evidence, William Bill Campbell could not have done all that was done that night. Just that high. Just that high. And I suggest to you, under all that physical evidence, that it took more than little Campbell to have done old Mr. Eberhart in; because we can tell that the old man fought, and he fought, and he fought for his life. And Campbell would have fallen out from sheer exhaustion and emphysema long before those mortal blows would have been done.
C. The Recantation
Several years after Drake was convicted and sentenced to death, William Campbell changed his story. On April 24, 1981, he gave the following affidavit:
My name is William Campbell and I was a witness in the trial of Henry Arthur Drake for armed robbery and murder. I lied at this trial. I said Henry was the one who killed the barber, Mr. Eberhart, and that I tried to stop Henry from killing him. But what I said were lies. I was the one who killed Mr. Eberhart. Henry wasn’t even there. He didn’t have anything to do with it.
Me and Henry were going to Colbert. Henry was going to see his mamma and *1476he dropped me off at the barber shop and was going to pick me up on his way back to Madison. I went to the barber shop and Mr. Eberhart cut my hair, but he messed my hair up. I tried to get him to fix it but he wouldn’t. He got mad and hit me with a hammer. I pulled my knife to try to get the hammer from him. I stabbed him but the blade broke off. I got the hammer away and beat him up. I saw his watch and took it and took about $400.00 out of his pocket, too.
I left the barber shop and waited behind a laundromat until I saw Henry come back. I got in the truck. (I noticed Henry’s girl friend had a bowl of Henry’s mamma’s soup on her lap.) I told Henry .about the fight and I told him I thought I might have killed the barber. Henry had to go back to his mamma’s for a few minutes. He came back out with a coat or something. Then we went back to Madison.
During the night Henry went back to Colbert to see how the man was doing. In the morning he told me Mr. Eberhart was doing real bad and I’d better leave. I asked Henry to take me to Atlanta. I gave Henry Mr. Eberhart’s watch. Henry took me to Atlanta and I stayed there a few days and then took the bus to my hometown, Norton, Virginia. While I was there I robbed a pawn shop and was arrested and got twenty years for armed robbery.
While I was in jail in Virginia an officer from Georgia came to question me about the barber's murder. I figured Henry must have turned me in — told everything and where I was because the officer had the watch that I’d given Henry. I told the officer I didn’t kill Mr. Eberhart. I said Henry did it and I said I tried to stop Henry. I didn’t do nothing but lie. I lied about Henry because I thought Henry had done me dirty. I thought Henry had turned me in and the way Henry treated me when I came back to Georgia made me keep on lying. Henry was ugly to me at the jail and after my trial, Henry said he and his whole family were glad I got the chair.
But since being here at Jackson I’ve thought it over and I know it was wrong to lie and I can’t go on living like this. I’ve changed my way of living now. I’m living better and doing right now. I know what I’m saying might hurt my own appeals but I’m not going to worry about it. I don’t want to go on lying. I want to get this off my conscience and try to be forgiven by Henry and God Almighty.
I’m willing to go to court to say that I lied in Henry’s trial. Also this affidavit may be used in any way that will help change the wrong that I’ve done.
D. Subsequent Legal Proceedings
On the Basis of this affidavit, Drake filed an extraordinary motion for a new trial which was denied by the state trial court after an evidentiary hearing. The Georgia Supreme Court affirmed this ruling Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1981) reasoning that, “[t]he law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” 287 S.E.2d at 182. The State Supreme Court also said that Campbell’s recantation was not believable because of his trial testimony as to his poor health (that he was physically incapable of being the sole perpetrator) and the fact that his recantation8 indicated there was not much blood in the barbershop when he left, was inconsistent with the physical evidence introduced at trial. Id.
After certiorari was denied by the United States Supreme Court, Drake filed a peti*1477tion for a writ of habeas corpus in the United States District Court. The district court denied the petition without a hearing. A panel of this court affirmed that decision, Drake v. Francis, 727 F.2d 990 (11th Cir.1984), vacated and rehearing en banc granted, U.S. v. Garrett, 727 F.2d 1003 (11th Cir.1984).
II. THE LEGAL ISSUE IN CONTEXT
A. The Reviewing Courts Interpretation of the Two Trials.
All of the courts reviewing the petitioner’s claim of inconsistent theories of prosecution have denied relief but expressed, in varying degrees, concern about the prosecutor’s actions or at the very least have noted the factual inconsistency in the theories of the case presented at the two trials. The Georgia Supreme Court on direct appeal in Campbell’s case noted, “the evidence shows that the appellant mercilessly bludgeoned an elderly man, eventually to his death____” Campbell v. State, supra, 240 S.E.2d at 832. However, on direct appeal in Drake’s case the State Supreme Court noted: “[In Drake’s case, the state argued that he] Drake must have been the one who actually beat the victim [due to Campbell’s poor health].” Drake v. State, supra, 247 S.E.2d at 59. The state habeas judge reacted as follows:
The State did exactly what Petitioner says. The only issue is whether the pursuance by the State of inconsistent approaches in cases of this kind violates the constitutional rights of either or both of the defendants. In support of this argument, Petitioner cites cases holding that there is a prosecutorial obligation to act in good faith and that prosecutorial misconduct can amount to a constitutional deprivation. In' response, the Respondent asserts that the prosecution of the two cases was not inconsistent but conveniently moves on quickly to another subject without saying why.
The fact is that the prosecutions were inconsistent. The issue is whether the constitution requires that the State employ basic honesty in prosecuting those accused of crime or whether it can join in the game of seeking a result without much regard for the tactics. The Court does not make this observation lightly and recognizes that the horrible murder of the victim in these cases would likely have moved any community and any prosecutor to do whatever was necessary to bring the responsible parties to justice. The Court seriously doubts, however, that the Constitution can stand many cases where the expedient of exacting justice overpowers completely all sense of fairplay.
Drake v. Francis, Civ.Act. No. 4246, slip op. at 10-11 (Superior Court Butts County, 1981) (State habeas opinion) (emphasis added).9
After exhausting his state remedies, Drake renewed this claim in his federal habeas petition. The district court found no constitutional error in this claim although the court did recognize the inconsistency of the theories:
[I]n Campbell’s trial the state’s theory was that Drake was probably just the “pick up man.” In Drake’s trial, evidence was revealed that Campbell was not physically able to participate in a struggle such as the evidence indicated had occurred. The State in Drake’s trial argued that Drake had to have conducted the brutal beating.
Drake v. Francis, Civ.Act. No. 82-99-ATH, slip op. at 8 n. 4 (M.D.Ga. Dec. 15, 1982) .
The panel of this circuit that originally heard the appeal from the district court’s denial of federal habeas corpus relief believed the theories were fairly consistent but noted: “Hence the only inconsistent theory proposed in the two trials was that *1478Campbell’s prosecutor believed Campbell was the sole murderer while in Drake’s case, the district attorney urged that, due to sheer physical necessity, Drake must have participated in the attack as well.” Drake v. Francis, supra, 727 F.2d 994.10
A review of the record of Drake’s and Campbell’s trials, conducted by the same prosecutor, leads me to agree that the theories of the case developed by the state at the two trials were inconsistent but to disagree with the legal conclusion drawn from those events. In my view, the state’s action in Henry Drake’s trial violated the fundamental fairness requirement stemming from the due process clause of the Fourteenth Amendment.
B. Fundamental Fairness
It is the duty of a prosecutor not only to convict but to seek justice. See A.B.A. Standards for Criminal Justice, 2d Ed. (1982) § 3-l.l(b)(c); A.B.A. Code of Professional Responsibility, E C 7-3; see also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). He has a responsibility to guard the rights of the accused as well as those of society at large. A.B.A. Standards, § 3-5.8(c)(d). This is so because, “[sjociety wins not only when the guilty are convicted but when criminal trials are fair; our system of justice suffers when any accused is treated unfairly.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
A fair trial in a fair tribunal is a basic requirement of due process. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). Due process is not a technical conception with a fixed context; it has never been and perhaps never can be precisely defined. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). “Fundamental fairness,” as a by product of due process, is “a term whose meaning can be as opaque as its importance is lofty.” Id. Whether or not a particular action or series of actions by a prosecutor in a criminal trial renders that proceeding fundamentally unfair is frequently a judgment that must be made by the federal habeas court after reviewing the challenged actions in light of the entire record as well as assessing the relevant precedents and the other interests at stake. Lassiter, 452 U.S. at 25, 101 S.Ct. at 2158.
In this ease, the prosecutor’s actions tainted Drake’s trial. Campbell told essentially the same story in both trials, i.e. that Drake and only Drake was the murderer. In Campbell’s trial, however, the prosecutor attacked that story as unbelievable and argued that Drake was merely the one who “cased” the barbershop. Having destroyed Campbell’s credibility in that trial and secured one death penalty, he then called Campbell as the state’s principal witness in Drake’s trial in order to obtain a second one.
Initially it should be noted that clearly, without Campbell’s testimony, there would not have been sufficient evidence to support a conviction. Without that testimony this court would have no choice but to grant the writ and order a new trial pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Other than Campbell’s testimony, as virtually every court to review this case has conceded, there is almost no evidence linking Drake to the crime.11
*1479Second, if the prosecutor did not believe Campbell’s testimony but called him anyway, then that would be constitutional error. Obviously the prosecutor either believed or did not believe Campbell. If he did believe him, then the prosecutor should not have prosecuted Campbell or, once he decided that he believed Campbell’s story (if this was after Campbell’s trial), he should have taken steps to correct the error. If he did not believe Campbell, then the prosecutor used testimony he thought was false in order to convict Drake, a conviction he could not constitutionally otherwise secure.
In Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) and Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) the Supreme Court made clear that a conviction obtained through the use the prosecution of false evidence, known to be such by the state, renders the conviction void under the Fourteenth Amendment.12 The prosecutor has a duty not only to refrain from soliciting false evidence but also a constitutional duty to correct false evidence that he does not intentionally elicit. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Furthermore, courts have not adopted a technical conception of “false” evidence or testimony. Blankenship v. Estelle, 545 F.2d 510, 513-14 (5th Cir.1977) (testimony does not have to technically be perjurious to fall within the ambit of knowing use of false testimony).
In this case it is not clear what the prosecutor actually believed. We do know, however, that at Campbell’s trial he vigorously attacked Campbell’s testimony as unbelievable and argued to the jury that Campbell was the actual murderer. The jury likewise necessarily thought Campbell’s version of the events was false or it could not have convicted him of murder and returned a death penalty. Furthermore, we know that the prosecutor at no time, either before or after Drake’s trial, took any action that indicated he believed Campbell’s story.
Therefore, all we can say for certain is that the prosecutor attacked William Campbell’s testimony at his trial as unbelievable and argued that Campbell must have been the sole murderer. The jury accepted the prosecutor’s version of the events as true and rendered a verdict accordingly. One year later, William Campbell was called as the principal witness in Henry Drake’s trial. The conclusion seems inescapable that the prosecutor obtained Henry Drake’s conviction through the use of testimony he did not believe; bringing this case under the logical if not actual factual framework of Mooney and Napue.
As the state habeas judge recognized, the prosecution’s theories of the same crime in the two different trials negate one another. They are totally inconsistent. This flip flopping of theories of the offense was inherently unfair. Under the peculiar facts of this case the actions by the prosecutor violate that fundamental fairness essential to the very concept of justice. Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941). However, it makes no sense to say that only Campbell’s due process rights were violated by the inconsistent theories. Either both defendant’s were prejudiced by the prosecutor’s actions or neither’s were. This is especially true in this case because the fingerprints, blood tests, and a witness linked Campbell and not Drake to the crime. That evidence is highlighted by Campbell’s subsequent recantation.
The state cannot divide and conquer in this manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth. In prosecuting Campbell and Drake for the murder of Mr. Eberhart, the prosecutor changed his theory of what happened to suit the state. This distortion rendered Henry Drake’s trial fundamentally unfair.
. However, as I specially concurred in Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), I cannot totally concur in the majority’s reasoning.
. TT refers to the trial transcript from Henry Drake’s state murder trial. Drake and Campbell had met while both were inmates at the state penitentiary in Reidsville. Campbell came to live with Drake and Carruth after he was released from prison.
. CTT refers to the trial transcript of William Campbell’s state trial.
. The Georgia Supreme Court apparently believed that Campbell was the murderer as well.
In its proportionality review of his sentence, that court stated: "The evidence shows that the appellant mercilessly bludgeoned an elderly man eventually to his death with a claw hammer.’’ 240 S.E.2d at 832.
. The State did, in fact, present testimony of a forensic scientist that Type A blood scrapings were taken from the door frame; Campbell was typed as A, while Eberhart and Drake were typed as O.
. This version was inconsistent with Campbell's earlier statement that the car was parked up the street at the store (TT 126).
. Two Miller Beer Bottles, the kind Campbell said they drank, were found at the cemetery.
. In addition to the affidavit, William Campbell testified at an evidentiary hearing in the state trial court regarding the new trial motion. His testimony there reaffirmed his recantation. It was at that hearing that he gave the statement regarding the lack of blood. It also must be noted that Campbell had appeals pending when he gave the affidavit and testified. His attorney at that time, Robert Beal, stated on the record that Campbell was testifying against his advice and was aware of the possible adverse consequences, i.e., prejudice to his pending legal matters and a possible prosecution for perjury. (State Habeas Transcript pp. 6-7, before Honorable William F. Grant, Superior Court of Butts County, July 7, 1981).
. However, he went on to express his belief that Campbell's and not Drake’s due process rights were violated.
In this situation, it is actually Mr. Campbell (see Campbell v. State, supra) and not Petitioner who has the superior right to complain about the tactics of the State because Mr. Campbell was convicted and sentenced to death by a prosecution that contended on another day that he was too old and sick and weak to commit the crime.
. The panel also believed, as did the state habeas court, that even if there was a due process violation, it was Campbell's not Drake's rights that were transgressed.
. In Georgia a defendant cannot be convicted on the basis of the uncorroborated testimony of an accomplice. O.C.G.A. § 24-4-8. The purpose of the corroboration principle is to safeguard against one person falsely maintaining that he and the defendant were accomplices to commit the crime. Coleman v. State, 227 Ga. 769, 183 S.E.2d 379, 381 (1971). Slight evidence, either direct or circumstantial, will suffice to corroborate an accomplice’s testimony. Cole v. State, 156 Ga.App. 228, 274 S.Ed.2d 685 (1980). However, where the corroboration of the alleged accomplice's testimony is entirely circumstantial and is of itself as consistent with innocence as with guilt, such evidence is insufficient to sustain a verdict. Reed v. State, 127 Ga.App. 485, 194 S.E.2d 121 (1972).
The Georgia courts have resolved this issue adversely to the petitioner. A federal habeas court, therefore, cannot review the merits of this claim. Llewellyn v. Stynchcombe, 609 F.2d *1479194, 196 (5th Cir.1980). In my opinion, however, Campbell's testimony did not have sufficient corroboration to meet the test of reliability.
. This rule applies even if the falsity goes only to the credibility of the witness and the jury has other grounds to disbelieve the witness. Napue, supra, 360 U.S. at 269-70, 79 S.Ct. at 1177.