concurring.
I concur in Parts I, II, 111(A), 111(C)(2), III(D), and III(E) of the court’s opinion and in its judgment. I agree that Driscoll’s defense counsel’s performance at trial with respect to the serology evidence meets the first part of the Strickland test. It was of fundamental importance that the defense show conclusively (and with reasonable investigation and pretrial preparation it could have done so) that none of Officer Jackson’s blood was on the knife the state claimed was used by Driscoll to murder the officer. I am also of the view that there is a reasonable probability that but for counsel’s deficient performance, the result in the guilt phase of DriscoH’s ease would have been different. Moreover, and after considering the totality of the evidence, because of the crucial nature of this exculpatory evidence, my confidence in the outcome of the case is seriously undermined to the extent that I believe the result reached is unreliable. Lockhart v. Fretwell, 506 U.S. 364, 371-73, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
Because I agree that Driscoll is entitled to a new trial, my respectful disagreements with the court’s analysis and opinion "with regard to Driscoll’s Caldwell claim and with his claim concerning the cross-examination of the witness Joseph Vogelpohl (contained in Parts III(B) and 111(C)(1) of the opinion) do not require explication except to say that I do not believe Driscoll has ever asserted the stand-alone Eighth Amendment Caldwell claim upon which the court today grants him relief. The Caldwell claim has always been made as a part of Driscoll’s ineffective assistance of counsel claim, and as a claim that the state trial court denied him due process by not admonishing the prosecutor sua sponte concerning the complained-of comments. As indicated, I agree with the court’s conclusion that Driscoll’s trial counsel could not be constitutionally ineffective for not making a Caldwell objection before Caldwell was decided.