dissenting.
I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide. The Court’s opinion, like the Attorney General’s argument for the State, regards as “undisputed” old evidence and inferences that are now contradicted by other evidence in the case. It fails to describe adequately the persuasive case of actual innocence that the petitioner’s newly discovered evidence raises. Nor does it adequately describe the legal standards to be applied.
This dissent will first describe the constitutional standards applicable in “actual innocence” cases such as this one. There are four actual innocence theories applicable in this case based on the body of newly discovered evidence presented at the federal habeas hearing: (1) a “free-standing,” substantive, so-called “Herrera” actual innocence claim, (2) a procedural, or “gateway,” so-called “Schlup” actual innocence claim, (3) the more limited “gateway” claim that the petitioner is “actually innocent of the death penalty” because the new body of evidence shows that petitioner is not now eligible for the death penalty because the rape aggravator has been disproved, and (4) a free-standing, substantive “actual innocent of the death penalty” claim. It will then outline the evidence in detail and apply the standards in four parts, as follows:
First, at the state trial in Maynardville, Union County, Tennessee, in 1986, and in its argument to uphold the death verdict in the Tennessee Supreme Court, the State relied on rape as the motive for the kidnapping and the murder of Carolyn Mun-cey. There was no other motive offered. It relied on a semen specimen on her nightgown as proof that House tried to rape her. Newly discovered DNA evidence now conclusively establishes that the semen was her husband’s. There is now absolutely no evidence of sexual assault. The new evidence disproves the motive the jury accepted as the basis for the kidnapping and murder and the aggravating circumstances the jury found as its basis for the death penalty.
Second, besides the semen evidence, the State introduced at the trial one other piece of highly incriminating scientific evidence: evidence of Carolyn Muncey’s blood on House’s blue jeans worn on the night of the murder. At the 1999 federal habeas hearing, the State’s case was undermined by the State’s own medical examiner, Dr. Cleland Blake. As “Consultant in Forensic Pathology” for the Tennessee Bureau of Investigation for 22 years, Dr. Blake has testified for the prosecution in the past in hundreds of cases. Four vials of blood were extracted at the time Carolyn Muncey was autopsied. Dr. Blake, the State’s medical examiner, testified at length that he had no doubt that the blood on House’s pants was spilled from one of these four vials of blood shipped to the lab by local law enforcement agents — spilled either accidentally or intentionally. There is no explanation besides spillage for the fact that one of the four vials of blood was empty. The new body of evidence shows conclusively that the vials of blood were not properly handled and shipped by law enforcement and that the blood that spilled from the vials cannot otherwise be accounted for.
Third, testimony from five new witnesses offered at the habeas hearing impli*687cates Mr. Muncey in his wife’s murder. The new evidence discloses that Mr. Mun-cey, with a flood of tears, confessed to two women friends after the murder that he had killed his wife. He told a third woman that he was going to “get rid” of Carolyn a few weeks before the murder. He asked a fourth woman to provide him with an alibi on the night of the murder and gave testimony about his whereabouts that night at the time of the murder that has now been contradicted by a local law enforcement officer. The State offered no evidence that any of these witnesses was biased in favor of House or prejudiced against Mr. Muncey.
Fourth, the evidence completely undermines the reliability of the testimony of Billy Ray Hensley, the witness who said that on Sunday afternoon before the victim’s body was found, he saw House coming up the embankment on Ridgecrest Road where the body was later found that day. Based on his own testimony and an examination of the record, it would have been impossible for Hensley to see House as he claimed.
Union County, Tennessee, is a small rural county in the hill country of East Tennessee. It has a population of 12,000. Maynardville, population 1,000, is the county seat where Carolyn Muncey’s murder was investigated and tried. Local law enforcement officials from the Sheriffs office testified that immediately after the murder they had two suspects, House and the victim’s husband, Hubert Muncey, called “Little Hube.” Mr. Muncey grew up and was well-known in the local community. Although “Little Hube” had a history of severe domestic abuse, the local police chose House as the murder suspect when he told them two days after the body was found that he had just recently moved into the local Luttrell community and that he had a sexual assault conviction in Utah and after they had developed other incriminating evidence.
In its opinion in 1987, affirming House’s conviction, the Supreme Court of Tennessee noted the semen evidence and rape as the motive for the homicide. It noted that House had “never confessed to any part in the homicide, and the testimony linking him to it was circumstantial.” The Court also observed that the Munceys “had been having marital difficulties and that she had been contemplating leaving him.” State v. House, 743 S.W.2d 141, 143 (Tenn.1987). The case comes down to the question of whether the newly discovered evidence undermining the case against House and incriminating Mr. Muncey is sufficiently strong — despite the uncertainties that remain — to preclude a rational juror from finding guilt beyond a reasonable doubt and to make the execution of House “constitutionally intolerable.”
I. Standards for Actual Innocence Claims
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), is the only Supreme Court case that has discussed and compared the standards to be applied in three of the four different types of actual innocence claims that may be asserted in habeas: (1) “free standing,” (2) “gateway” and (3) “innocent of the death penalty” gateway claims. There, in an opinion for six members of the Court, Justice Stevens wrote that it is “firmly established in our legal system, that the line between innocence and guilt is drawn with reference to a reasonable doubt,” and that “the analysis [of actual innocence claims] must incorporate the understanding that proof beyond a reasonable doubt marks the boundary between guilt and innocence.” Id. at 328, 115 S.Ct. 851. This starting point is a major factor for all types of actual innocence claims. For such *688claims, this factual analysis is always a “probabilistic determination” about the behavior of a reasonably instructed juror. Id. at 329,115 S.Ct. 851.
1. Gateway, Actual Innocence Claims. — In Schlup, 513 U.S. at 316, 115 S.Ct. 851, the Court stated that for substantive, free-standing claims where the “conviction was the product of a fair trial,” the “evidence of innocence would have had to be strong enough to make an execution ‘constitutionally intolerable.’ ” Yet, when a claim of innocence is coupled with an assertion of constitutional error at trial, the “conviction may not be entitled to the same degree of respect.” Id. Thus, the “evidence of innocence need carry less of a burden.” Id. In Schlup, as in House’s gateway claim in the instant case, the claim of constitutional error at the original trial was ineffective assistance of counsel; and the actual innocence claim was used as a “gateway” to overcome procedural default in order to reinstate the ineffective assistance claim and render it again cognizable. For such gateway or procedural claims, the Schlup opinion holds that a petitioner must demonstrate that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 S.Ct. 851.
2. Gateway Innocent of the Death Penalty Claims. — The Court in Schlup discussed and left intact the standard for claims of “innocent of the death penalty” (claims that the evidence of aggravating circumstances at the sentencing phase of the case is insufficient to render the defendant eligible for the death penalty) — a standard announced in the previous case of Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). In such “innocent of the death penalty” claims governed by Sawyer, the question is always whether the petitioner’s proof of innocence is sufficient to overcome a procedural default and render a defaulted constitutional claim again cognizable. Quoting Sawyer, the Court said that claims of actual innocence of the death penalty at the sentencing phase “must focus on those elements which render the defendant guilty of the death penalty” and show “by clear and convincing evidence” that “no reasonable juror would have found the petitioner eligible for the death penalty” beyond a reasonable doubt. Schlup, 513 U.S. at 323, 115 S.Ct. 851. This is the standard applicable to the question of innocence of the rape-homicide aggravator found by the jury at House’s trial. If found, it would make House’s ineffective assistance of counsel claim at the penalty phase of the case cognizable.
3.Free-standing Actual Innocence Claims. — In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court did not spell out a standard for free-standing substantive claims of actual innocence in cases which presuppose a fair trial. Instead, it merely noted that the required “threshold showing” would be “extraordinarily high.” 506 U.S. at 417, 113 S.Ct. 853. In a concurring opinion, Justice White sets out a very demanding standard:
I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by the law for the presentation of newly discovered evidence would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt."
*689Id. at 429, 113 S.Ct. 853 (White, J., concurring) (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis added).1 As laid out below, the White standard is appropriate to apply in free-standing actual innocence claims. Justice White’s proposed standard borrows language from Jackson, in which the Court established the test governing habeas review of claims of insufficient evidence. In Jackson, the Court found that due process guaranteed by the Fourteenth Amendment requires “that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of the element of the offense,” 443 U.S. at 316, 99 S.Ct. 2781. When petitioners make Jackson claims, they assert that the trial leading to their conviction was flawed in that the evidence of guilt presented in the trial record was insufficient to support the verdict.
With free-standing actual innocence claims, petitioners are not claiming that their trial violated constitutional due process requirements due to insufficient evidence. Instead Herrera claims are to provide relief to one who faces the death penalty and can make a truly persuasive case of innocence. In order to prevent what the Supreme Court describes as “constitutionally intolerable,” Schlup, 513 U.S. at 316, 115 S.Ct. 851, courts must consider newly discovered evidence in addition to the trial record. The proof established at the original trial must be examined in light of what is newly proffered to determine if all the available evidence would support conviction. The White standard is appropriate for use in freestanding actual innocence cases as it is a very high standard that will only be met in exceptional cases where new evidence has unquestionably undermined the case against the petitioner. It also forces courts to make an objective determination regarding what a fact finder could find rather than what a hypothetical juror would find.
Utilizing Justice White’s standard would permit courts to adequately address the rare case of actual innocence without becoming bogged down by non-meritorious claims. Justice O’Connor in Herrera noted the Court’s concern that if the standard for free-standing actual innocence cases is set too low, “federal courts will be deluged with frivolous claims of actual innocence.” 506 U.S. at 426, 113 S.Ct. 853 (O’Connor, J., concurring). The White standard borrowed from Jackson addresses this concern as new evidence would have to so undermine the case against the petitioner as to make the conviction untenable and the imposition of the death penalty constitutionally intolerable. The Court has noted that the Jackson standard is an incredibly high hurdle for a petitioner to jump. See Schlup, 513 U.S. at 323 n. 38,115 S.Ct. 851 (“Even the high standard of proof set forth in Sawyer falls short of the Jackson standard governing habeas review of claims of insufficiency of evidence.”). Under the proposed standard, “the mere existence of sufficient evidence to convict would be determinative of a petitioner’s claim.” Id. at 330, 99 S.Ct. 2781.
*690The inquiry as to whether any rational juror could convict also seeks to make the determination of actual innocence more objective. As the Supreme Court wrote, describing the standard, “the use of the word ‘could’ focuses the inquiry on the power of the trier of fact to reach its conclusion,” whereas “the use of the word ‘would’ focuses the inquiry on the likely behavior of the trier of fact.” Id. Whether a rational fact finder would have the ability to convict the petitioner in light of all available, reliable, and relevant evidence “requires a binary response.” Id. Either the evidence is sufficient to support the conviction or it is not. The analysis thus interferes with the original trial determination only to the extent necessary to ensure that a prisoner is riot executed when the available evidence cannot support his conviction. This Court should adopt Justice White’s standard from Herrera, and the writ should issue if in light of newly discovered evidence, no rational trier of fact could find proof of guilt beyond a reasonable doubt.
4. Free-standing Innocent of the Death Penalty Claims. — Although not discussed in Schlup or other cases, for cases raising a substantive, non-gateway claim that the condemned prisoner is not eligible for the death penalty at sentencing, the standard should be the same as the White standard. The petitioner must demonstrate no rational fact finder examining the trial record and the new evidence could impose the death penalty. If he can disprove the aggravator for which he was sentenced to death, it is plainly unconstitutional for the sentence to stand.
In my view, as I will now explain, the petitioner has carried his burden of proof on all four theories. He has clearly shown both that a reasonable juror would have a substantive and serious doubt as to his guilt and that the cumulative evidence is insufficient to enable a rational juror to convict House or sentence him to death for the murder of Carolyn Muncey.
II. Rape as House’s Motive— the Semen Evidence
In its opinion, the Tennessee Supreme Court in its factual statement recounted evidence of rape as the motive for the kidnapping and murder noting that “there were found on her nightgown and underclothing some spots of semen stain from a male secretor of the same general type as appellant,” State v. House, 743 S.W.2d 141, 143 (Tenn.1987), and referring to inferences available to the jury from the fact that “the state proved appellant’s prior conviction for aggravated sexual assault.” Id. at 144.
In light of the evidence introduced at the federal habeas hearing, the State now concedes that the semen specimen found on the nightgown Carolyn was wearing when murdered was “Little Hube’s,” not House’s; and there is no other evidence of rape or sexual assault. The State’s concession is based upon DNA analysis introduced at the habeas proceeding by counsel for House. But the State now seems to deny that the semen evidence was introduced at the state trial in 1986 to show that House attempted to rape Carolyn or that rape was the motive offered to the jury for this kidnapping and murder and the basis of the jury’s verdict. This argument is simply not consistent with the facts, and the majority opinion does not acknowledge or deal with this problem. The State has no other explanation or evidentiary basis for introducing the semen evidence at the trial other than to show attempted rape as the motive. Because the Court’s opinion does not deal with the problem and the State now denies what it strongly claimed when it tried the case and obtained the death verdict, we will itemize in some detail the evidence *691that contradicts the State’s present argument that the prosecution did not rely on rape as the motive for the murder and for the death penalty aggravator.
From the beginning in July 1985, the police and prosecutors viewed this as a rape murder case and so advised the FBI lab and then the jury. In the various lab reports from the FBI to the local prosecutors, the correspondence is always, designated as “rape-homicide.” The first lab report described the crime as “rape-homicide” two weeks after the murder:
REPORT of the FBI Laboratory
FEDERAL BUREAU OF INVESTIGATION
WASHINGTON, DC 20535
July 29,1985
To: Mr. Williams Paul Phillips FEDERAL EXPRESS
District Attorney General Post Office Box 10 Huntsville, Tennessee 37756 FBI File No.
LAB NO. 50717040 S XI VB VJ 50722020 S XI VB
YOUR NO.
Re: PAUL GREGORY HOUSE — SUSPECT; CAROLYN MUNCEY — VICTIM; RAPE — HOMICIDE
Examination requested by: Addressee and Sheriff of Union County, Maynardville, Tennessee
Reference: Letter from District Attorney General dated July 16,1985, and letter from Sheriff of Union County dated July 19,1985
Examination requested: Chemical Analyses — Microscopic Analyses— Mineralogy
FBI File, Criminal Trial Exhibits, Addendum No. 2, Exhs. 31 & 32, admitted into evidence, Addendum No. 4, p. 903.2
Four such lab reports designating House as the “suspect” and “rape-homicide” as the nature of the case were shown to the jury at House’s trial on February 6, 1986, after being admitted into evidence as State’s exhibit 32. The jury read a letter from Union County District Attorney William Paul Phillips dated July 16, 1985, to the FBI lab in Washington stating that this was a “sexually motivated attack.” Id. at p. 6. Then the jury saw four FBI lab *692reports like the one above referring to House as the “suspect,” “Carolyn Mun-cey — victim,” and the nature of the case described as “rape-homicide.” Id. at pp. 4, 10, 12, 34. The FBI lab reports analyze the semen based on the presupposition that it was “House’s” semen. On each of the lab reports placed before the jury the words “FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE” are prominently displayed at the top of the page just before “rape-homicide” is identified as the nature of the case and House as the “suspect.” Id.
The semen evidence referred to in these reports was placed before the jury and came in at the state trial through the testimony of long-time FBI expert Agent Paul D. Bigbee, who specialized in analyzing “physical evidence in criminal cases for the presence of blood and other body fluids.” Testimony of Paul Bigbee, Trial Transcript, Addendum No. 4, Vol. VI, p. 883. He testified at length about the semen evidence. Here are a few examples of his testimony on this subject:
Q All right, did you find semen on any of her items of clothing?
A Yes sir, I did.
Q Where did you find the semen?
A I found semen in the panties and on the gown.
Q Now, can you tell me, can you detect semen stains at times in determining things about the blood type of the person who emitted or the blood type of the person that semen is from?
A Yes, sir. If the person who deposited the semen is a secretor, which . means eighty (80) percent of the population secrete the ABO blood group substances in other body fluids, such as semen and saliva, if that person is a secretor, then the ABO blood type can be determined from the semen.
Q How about Mr. House, is he a se-cretor?
A Yes sir, he is.
Q Can you tell me where, can you hold the gown up and show the jury where on the gown you found semen?
(WITNESS COMPLIES WITH REQUEST)
A If you look on the front of the gown, at the very bottom here, you can see one cutting I took that has the number and letter, IS, that is the location where I found the semen.
Q On the front of the gown?
A Front bottom portion.
Q You may put that back now. What can you tell us about the blood type, if you can tell us anything, of the person who that semen came from, the male that that semen came from?
A The person who deposited that semen was a blood type A.
Q Now, what blood type is Mr. House?
A He is blood type A.
Q [T]he semen on the nightgown could be from Mr. Muncey?
A It could be, however, I was not able to determine his secretor status.
Q And he is not definitely a secretor?
A I don’t know whether he is or not. I could not determine that.
Q But you know that Mr. House definitely is a secretor?
A Yes, sir.
*693Q And only if a person is a secretor, can you determine the blood type from the semen, is that right?
A That is correct.
Id. at pp. 896-900.
In the State’s argument to the jury at the end of the guilt phase of the trial, the District Attorney told the jury that rape was House’s motive in the following words:
Now you may have an idea why he did it. The evidence at the scene which seemed to suggest that he was subjecting the lady to some kind of indignity, why would you get a lady out of her house, late at night, in her night clothes, under the trick that her husband has had a wreck down by the creek? Why is it that you want to get her down by the creek?.... It is either to keep her from telling what you have done to her, or it is that you are trying to get her to do something that she nor any mother on that road would want to do with Mr. House .... and you kill her because of her resistance.
Closing Argument, Trial Transcript, Addendum No. 4, Vol. IX, pp. 1302-03.
After the jury returned its verdict at the guilt phase of the trial, the District Attorney advised the court in preparation for the sentencing phase of the trial that the State’s theory requesting a death sentence is based on “the fact that there was semen on the outer garment, that is the nightgown,” and “we say that the jury could well conclude that this murder occurred in the process of another crime, that being in the process of either rape or attempted rape.” Trial Transcript, Addendum No. 4, Vol. X, p. 1381. The prosecutor opened his argument at the sentencing phase by telling the jury:
The defendant, the proof indicates, has in the past been convicted of aggravated sexual assault which is something that the judge will instruct you that you should consider... .We also think the proof shows strong evidence of attempted sexual molestation of the victim to accompany the taking away and murdering her.
Id. at pp. 1410-11. The prosecutor then tied the prior conviction for sexual assault and this attempted rape together arguing in favor of the death penalty because House has “been through the process before and having been convicted of a crime involving ... aggravated sexual assault,” he “cannot benefit from the type of rehabilitation that correction departments can provide.” Id. at p. 1413. Then at the end of his impassioned argument at the sentencing phase, the District Attorney returned again to this theme asking the question, “did he commit this crime while he was engaged in an attempt at rape?” Id. at 1444. And then he answered that question in the affirmative.
As soon as the District Attorney sat down, the court charged the jury that the defendant “was previously convicted of’ sexual assault and then defined rape: “I will charge you that rape is the unlawful, carnal knowledge of a woman forcefully and against her will. Carnal knowledge is accomplished by the commencement of the sexual connection and proof of emission is not required.” Id. at p. 1447. The court again for a second time said in charging the jury that they may sentence the defendant to death if “the murder was committed while the defendant was engaged in committing or was attempting to commit or was fleeing after committing or attempting to commit rape,” and defined rape again as “the unlawful carnal knowledge of a woman, forcibly and against her will.” Id. at p. 1448. The jury then returned its verdict of death saying that its reason for sentencing the defendant to death was that “the murder was committed while the defendant was engaged in *694committing or was attempting to commit or was fleeing after committing or attempting to commit rape or kidnapping.” Id. at p. 1455.
When House appealed to the Tennessee Supreme Court, the State in its brief was not hesitant to argue rape as the motive for the kidnapping and the murder and the basis of the jury’s death sentence. In its brief, the State argued that the murder was committed while the defendant was engaged in attempting to commit rape and that “[s]emen was found on the victim’s gown and panties and was consistent with the defendant’s blood type.” Brief of the State of Tennessee, S.Ct. No. 2, Union County, filed Apr. 29,1987, Addendum No. 6, p. 49. It is against this background that the Tennessee Supreme Court cited the prosecution’s claim that the evidence proved that “on her nightgown and underclothing some spots of semen stain from a male secretor of the same general type as appellant.” State v. House, 743 S.W.2d at 143. The Tennessee Supreme Court upheld House’s conviction and the imposition of the death penalty based upon rape as the motive for the kidnapping and murder. Id. at 142. Even at the federal habeas corpus hearing 13 years later, Assistant Attorney General Glenn Pruden for the State, said that at the trial “an aggravating factor was found that this murder was committed in the attempt to commit, to perpetrate a rape and the perpetration of the kidnapping.” House v. Bell, No. 3-96-CV-883, Transcript of Habeas Hearing, p. 91 (E.D.Tenn. Feb. 1, 1999).3 There can be no doubt that the State claimed rape as the motive from the beginning and throughout the trial, and that the jury so found and that the Tennessee Supreme Court approved the verdict on that basis.
The newly discovered evidence conclusively removes rape as the motive and eliminates rape as the aggravating circumstance that made the defendant eligible for the death penalty. Without any evidence of rape, the State has lost its motive, its theory of the case and the aggravating circumstance on which the State and the jury relied for its death verdict. House has met the standard for actual innocence of the death penalty by conclusively disproving the aggravator that made him eligible for the death penalty. No rational, reasonable juror could now find that House raped or attempted to rape Mrs. Muncey. Without any evidence of rape, the court would now have to direct a verdict in favor of House on this issue.
III. The Blood Evidence
The State introduced at trial one other piece of highly incriminating scientific evidence: evidence of Carolyn Muncey’s blood on the blue jeans worn by House on the night of the murder. Agent Paul Big-bee, the agent from the FBI laboratory that did the actual testing on the blue jeans in July 1985, shortly after the murder, testified that his testing demonstrated a clear match between the blood on the jeans and Mrs. Muneey’s blood. At the 1999 federal habeas hearing, however, the State’s case was undermined by its own medical examiner, Dr. Cleland Blake. Dr. Blake, the Assistant State Chief Medical Examiner, has been a consultant in forensic pathology for the Tennessee Bureau of Investigation for 22 years and has testified for the State in hundreds of cases. Dr. Blake testified at length that, based on enzymatic testing results performed by the FBI, he had no doubt that the blood on House’s blue jeans was spilled, either accidentally or intentionally, from the vials of *695blood taken from Mrs. Muncey’s body during her autopsy:
Dr. Blake: I conclude that the deteriorated blood which was in the jeans came out of the test tube [because] both [the blood on the jeans and the blood in the vials] had lost the enzyme.
The Court: So in your opinion then the blood on the jeans and the blood in the tube are one in the same.
Dr. Blake: That is my opinion.
Testimony of Dr. Cleland Blake, Transcript of Habeas Hearing, pp. 116-17, Feb. 2, 1999 (emphasis added). When we add to this testimony the fact that almost all of the blood in one of the vials was spilled and cannot be accounted for, as explained below, Dr. Blake’s conclusion that the blood evidence does not now support the jury verdict leaves little room for debate.
Dr. Blake arrived at his conclusion based on his theory of what constitutes normal or expected enzymatic degradation of blood in different media; that is, whether the blood is preserved in liquid form in test tubes or vials or whether it is dried on cloth or other material. Depending on the medium on which the blood is preserved, and the condition or state of the blood at the time it is preserved, the blood will degrade at different rates. Dr. Blake found an unexpected consistency in enzyme degradation between the liquid sample taken from Mrs. Muncey’s body after her death and the five samples of what the government contends is fresh blood that stained House’s blue jeans as he allegedly murdered Mrs. Muncey. Simplistically, the blood enzymes at issue here are proteins that are able to function properly only within the living human body. Once outside the body, or after the body is no longer functioning, the enzymes start to break down and lose their structure and shape and no longer function; they degrade and are said to become “denatured.” Generally, “fresh” blood from a live victim that comes in contact with dry cloth is “preserved” in a different, and generally better, way than blood that is stored in a test tube.4
The blood tests performed by Agent Bigbee of the FBI on the victim’s blood, stored in vials after being taken from her body during the autopsy, and the five samples from the defendant’s jeans, preserved on the cloth of the blue jeans, looked for the presence of various enzymes (to see whether they had denatured or not) in the blood. Of the ten enzymes tested, six had conclusive results. All six enzymes matched, making it reasonable for Dr. Blake to conclude that the enzymes in the blood on the jeans degraded at the same rate as the blood in the sample taken from the victim’s body and stored in glass vials or test tubes. Because they degraded at the same rate despite being “preserved” in two different media — test tube vials and cotton cloth of blue jeans — it appears that the enzymes came from the same sample, that is, the blood on the defendant’s jeans came from the sample taken.from the autopsy of the victim, not the victim herself when alive.
There is additional strong evidence that the sample in the vials of blood were mishandled or possibly even tampered with and intentionally spilled- on the jeans. Four vials of blood were taken from the victim during her autopsy. The vials, along with other evidence, were transported by law enforcement officials between Union County, Tennessee, and the FBI Laboratory in Washington, D.C. and back to Union County. In reaching his conclu*696sion that the blood on House’s blue jeans came from the vials of blood taken from Mrs. Muncey after her death, Dr. Blake also noted that the blood evidence had been mishandled in this matter. Although not an expert on the packaging and handling of evidence, Dr. Blake’s work requires him to examine evidence that has been packaged and handled by others on a regular basis. He determined in this case that the evidence had been mishandled and that blood had spilled from the vials, causing the contamination of the blue jeans. Testimony of Cleland Blake, Transcript of Habeas Hearing, pp. 50-51, Feb. 2, 1999. Dr. Blake testified that if tubes containing blood are not properly sealed, the stoppers on the tubes may come out if the blood samples become too warm. Testimony of Cleland Blake, Transcript of Habeas Hearing, pp. 51, Feb. 2,1999.
Detective Larry Johnson, of the Knox County Sheriffs Department, also testified at the habeas hearing as to the packaging and handling of the evidence in this case. Detective Johnson is an expert witness in the area of crime scene investigation, having examined hundreds of homicides, robberies, rapes and other crimes over 30 years. Detective Johnson testified after reviewing reports and photographs of the packaging of the evidence in this ease that “the packaging of the materials in the case did not meet professional standards.” He testified that although each piece of evidence was separately wrapped, it was placed in one box for transport or shipment, which is not the preferred manner of packaging. He testified that the best way is to put the victim’s clothing in one container, the suspect’s clothing in one container and biological evidence, like blood, in a different container to avoid transfer of potential evidence, such as fiber coming in contact with fiber. All evidence should be separated, labeled and sealed. Testimony of Larry Johnson, Transcript of Habeas Hearing, pp. 105-07, Feb. 1,1999.
In this case, the testimony of TBI agents Murray and Breeding, who transported the evidence from Tennessee to the FBI in Washington, D.C., reveals that although the evidence from Mrs. Muncey’s body may have been packaged separately, it was all transported to the FBI in Washington, D.C. in one box, contrary to good forensic practice. Testimony of Larry Johnson, Transcript of Habeas Hearing, pp. 104, Feb. 1, 1999. Moreover, it was the height of summer on the July day when the officers transported the material in the trunk of their car from Union County to Washington, D.C. There is no testimony that the trunk was air conditioned or that the blood samples from Mrs. Muncey were otherwise kept cool during the long trip from Tennessee to Washington, D.C. As noted above by Dr. Blake, the stoppers can blow off of blood vials if the sample becomes too warm.
Another witness, Howard Bragdon, worked for DiaClin, the private company that did the blood testing on the evidence at the request of House’s attorneys in October of 1985 after it had been in the possession of the government for over three months.5 Mr. Bragdon transported the evidence, including the Styrofoam box containing the vials of blood, from Union County to DiaClin’s offices in Nashville. Testimony of Howard Bragdon, Transcript of Habeas Hearing, pp. 1-6, Feb. 2, 1999. He testified that there was dried blood on *697the Styrofoam box when he took possession of it. Id. at pp. 6-7. The photographs taken by DiaClin in October 1985 and introduced at the habeas hearing clearly show blood staining the Styrofoam container used to transport the blood.
Mr. Bragdon also testified that one of the four vials was only partially full and another was nearly empty. Yet, Agent Bigbee testified that he used only one-fourth of a vial in performing his tests at the FBI lab in Washington, D.C. Mr. Bragdon also testified that two of the vials appeared to be leaking or had leaked when he picked them up in Union County.
The documentation, or lack thereof, concerning the chain of custody of the blue jeans and Mrs. Muncey’s blood samples is particularly troubling due to the evidence of possible mishandling of the evidence. The purpose of the chain of custody requirement is to “demonstrate that there has been no tampering, loss, substitution, or mistake with respect to the evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn.Crim.App.1993). While the state is not required to establish facts which exclude every possibility of tampering, the circumstances established must reasonably assure the identity of the evidence and its integrity. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn.Crim.App.1987).
The necessary “integrity” is lacking here. One exhibit introduced at the haber as hearing shows the plastic bag labeled by the TBI that contained the blue jeans. Petitioner’s Ex. 10-6, Habeas Hearing, Feb. 1999. However, Agent Scott of the TBI testified that he put the jeans in a paper bag after retrieving them from the clothes hamper at Donna Turner’s house after the murder. Testimony of Charles Scott, Transcript of Habeas Hearing at p. 115, Feb. 3, 1999.6 In addition, the FBI list of evidence it received from the TBI notes that the jeans were received in a sealed paper bag. FBI File, Addendum No. 2, Criminal Trial Exhibits, Ex. 31, pp. 36, 49. The plastic bag bore a label with the name “Charles Scott” written on it, but that label covers part of the markings made on the bag by the FBI, indicating that the label was put on after the FBI did its analysis. This sequence of events makes no sense because Charles Scott was the first agent to handle the jeans when he retrieved them from Ms. Turner’s house after the murder. Given the evidence that the jeans were originally placed in a paper bag, Agent Scott’s label likely was moved from another place — probably the original paper bag — and put on the plastic bag at a later time. The documentation showing the chain of custody for the blue jeans is of no help in sorting out the sequence of events. I can find no subsequent records showing when or by whom the jeans were transferred from the paper bag to the plastic bag.
Finally, adding to the likelihood that the blood samples were spilled on the jeans at some point' after they were removed from Ms. Turner’s home, the plastic bag holding the blue jeans appeared to have blood stains on it when received by Lisa Calan-dro, an expert in forensic DNA analysis and biological evidence analysis hired by House. See Photograph of plastic bag, Petitioner’s ex. 10-6, Habeas Hearing, *698Feb. 1999; Respondent’s Ex. 21, Habeas Hearing, Feb. 1999 (same). Ms. Calandro testified that the outside of the bag tested positive for the presence of blood, but analysis to further identify its source was unsuccessful. Testimony of Lisa Calan-dro, Transcript of Habeas Hearing, p. 76, Feb. 1,1999.
This mystery of how the blue jeans got from the paper bag in Tennessee to a plastic bag sometime later, the confusion in the labeling of the bag, the evidence of blood spilled inside the box containing the evidence, and the acknowledgment of missing blood demonstrate that critical evidence in this case was possibly tampered with, or, at the very least, not handled according to recognized protocol and accidentally spilled.
The testimony of Pauline Sutton also raises questions as to whether the jeans were tampered with. She noted that some of the blood stains were mixed with mud. The National Weather Service records show that it had not rained for three days prior to the murder, and photographs of the crime scene showed no mud present. There was no mud on the victim’s clothing. This evidence is inconsistent with the State’s contention that the mud and blood got on the jeans at the crime scene.
While the State acknowledges, and even stipulates on the record, that some of the blood taken from Mrs. Muneey’s body after her death cannot be accounted for and was likely spilled, Statement of Assistant Attorney General Glenn Pruden, Transcript of Habeas Hearing, p. 115, Feb. 1, 1999, as shown by the evidence introduced at the habeas hearing, it has offered no explanation nor even shown any interest in determining what happened to the missing blood.
Unlike many cases where accusations about chain of custody problems or mishandling of evidence are made, this is not a case where an inference of mishandling of the evidence has been made with no evidence to support such an inference or a case where there is simply a short gap in time where custody of the evidence cannot be determined. Here, both parties agree that blood was spilled or leaked from the vials. There is a blood stain on the container that held the blood samples and a blood stain on the plastic bag that contained House’s blue jeans. The vials themselves clearly show that significant leakage occurred and blood is missing from at least one of the vials that has not been accounted for through testing. What has not been established is when this spillage or leakage happened or how it happened. This inability to account for the blood through either the chain of custody or testimony from an individual along that chain, and the undisputed existence of blood stains on the container that transported the blood vials eliminates the probative value of the blood evidence. Surely the facts demonstrating the lack of care in handling the evidence, when viewed in conjunction with Dr. Blake’s expert testimony that the blood on the blue jeans came from the vials taken from Mrs. Muncey’s body after her death, not when she was alive, would lead a reasonable juror, hearing this evidence, to have a substantial and serious doubt as to House’s guilt. The Blake testimony together with the spillage creates a high probability that the blood on the House jeans came from a vial of blood.
IV. Newly Discovered Evidence That Mr. Muncey Killed His Wife
In addition to the newly discovered scientific evidence concerning the semen and blood stains, there is now strong independent evidence against Mr. Muncey as the perpetrator of the crime. There is no reason to believe that a jury would reject the testimony of the two life long residents *699of the Luttrell community who describe Mr. Munee/s weeping confession to them that he killed his wife accidentally while beating her. The women have no reason to fabricate, no axe to grind. Nor is there a reasonable basis for rejecting the highly incriminating testimony of two other women and the security guard at the Saturday night dance. Because the Court and the prosecution question the credibility of these witnesses and the inferences to be drawn from their testimony, we will quote their testimony in detail so that readers can make judgments for themselves.
Penny Angela Letner, a life long native of the Luttrell community, testified that there was a small gathering at the house of her sister, Kathy Parker, near the time of House’s trial in 1986. At that time Mr. Muncey confessed that he killed his wife under the following circumstances:
Q. Okay. If you would, just tell His Honor, what happened at that party-
A. I came in — and we call him Bub-ba — -he was sitting there and he was pretty well blistered. I could tell by the way he was talking.
Q. Who do you call Bubba?
A. Hubert Junior. We call him Bubba. We growed up around him. That was just a nickname for us. He was sitting there and he went to crying and was talking about his wife and her death and he was saying that he didn’t mean to do it.
MS. LUSTRE: Objection.
THE COURT: Same ruling. Go ahead.
A. He said he didn’t mean to do it. That she was “bitching him out” because he didn’t take her fishing that night, that he went to the dance instead. He said when he come home that she was still on him pretty heavily “bitching him out” again and that he smacked her and that she fell and hit her head. He said I didn’t mean to do it, but I had to get rid of her, because I didn’t want to be charged with murder.
Q. What did you do, when you heard this?
A. When he said that he had to get rid of her, it scared me quite badly. I was 19 year old with a small child. I got out of there immediately. After he made those statements, I was ready to leave there.
Q. Had Little Hube been drinking that evening?
A. From the way he was acting, quite a bit. He was talking kind of stiff tongued like, but it wasn’t to the point that I couldn’t understand what he was saying.
Q. Was he emotional when he was telling the story?
A. He was crying. He was very upset.
Testimony of Penny Letner, Habeas Hearing Transcript, pp. 28-29, Feb. 1, 1999.
On cross-examination, she explained her reason for coming forward in 1999 to give this testimony:
Q. Did you report this to the police?
A. No. I didn’t. I was 19 year old. I was kind of scared. I was frightened, you know. I didn’t know how to take it. I figured me being 19 year old they wouldn’t listen to anything I had to say.
Q. How is it that you came to give a statement now?
A. They was some people came and started asking questions and I answered their questions truthfully.
Q. What people?
A. It was an investigation that was ongoing for Mr. House.
*700Q. Do you remember who it was that came to talk to you?
A. Michael Lee was the first gentleman that I spoke with. He was the first one that questioned me.
Q. Why did you not tell Mr. Lee to get lost, essentially?
A. Because it’s not right. The gentleman stood right there in my face in front of several people and owned up to doing it. It’s not right for a man to be in jail for something he didn’t do.
Q. What made it not right 13 years later but okay for the intervening 13 years?
A. There wouldn’t nobody listen to me. Finally there was someone willing to talk to me.
Id. at pp. 31-32.
Kathy Parker, Mrs. Letner’s sister, also testified as follows about Little Hube’s confession and her reasons for coming forward:
Q. Do you have any recollection about anything that he said?
A. Oh, yeah, he said they had been into an argument and he slapped her and she fell and hit her head and it killed her and he didn’t mean for it to happen.
Q. Was he intoxicated?
A. ' He was drinking real heavily, yeah.
Q. Was he emotional?
A. Very.
Q. All right. How very is very?
A. Well, he was crying and just all to pieces.
Q. All right. How long had he been there before he told you about this incident?
A. Maybe 10 or 15 minutes, not real long.
Q. Did he say what they were arguing about?
A. He had wanted to go to a dance or something or another and was wanting to go somewhere else. That is what they got into an argument over.
Q. What did you do when you heard Little Hube say he hit his wife and she died?
A. I freaked out and run him off.
Q. You freaked out?
A. I freaked out and ran him off.
Q. Okay. After the party did you tell anybody about this?
A. Not that night. The next day I went to Union County and tried to talk to some law people and—
Q. Would they listen to you?
A. Went to Union County to the Sheriffs Department. I tried to speak to the Sheriff but he was real busy. He sent me to a deputy. The deputy told me to go upstairs to the courtroom and talk to this guy. I can’t remember his name. I never did really get to talk to anybody.
Q. Tried to tell them?
A. Yeah.
Q. Did you talk to your mother about it?
A. A little later on there wasn’t a whole lot said about it, but she was the one that took me to the courthouse.
Q. Your mother went with you to the courthouse that day?
A. She drove me. I didn’t have a vehicle.
Q. Did you know Carolyn Muncey?
A. Yes, sir.
*701Q. Axe you aware of whether or not Little Hube had ever abused her or beat on her?
A. She was constantly with black eyes and busted mouth.
Q. Let me ask you this. You know Little Hube?
A. Yes, sir.
Q. How long you been knowing him?
A. I dated him when I was 14 year old. I will be 42 in June.
Q. You have known him a long time?
A. Yes.
Q. Well, have you had any disagreement with him lately, any arguments, fights?
A. No.
Q. Are you mad at him?
A. No.
Q. Why are you here today?
A. Because I don’t think what has happened is right. It needs to be taken care of. An innocent man is in jail.
Q. Do you know the petitioner, Paul House?
A. No, sir.
Q. Ever met him?
A. No, sir.
Testimony of Kathy Parker, Habeas Hearing Transcript, pp. 37-39, Feb. 1, 1999.
Around two months before the murder of Carolyn Muncey, Mr. Muncey also told Hazel Miller, also a life long resident of Luttrell, that he was going “to get rid of that woman one way or the other”:
Q: All right. Back prior to the death of Mrs. Carolyn Muncey, did you have occasion to see Little Hube Muncey in your residence?
A. Yes, sir, sure did.
Q. About how long before Mrs. Carolyn Muncey’s death was Little Hube in your house?
A. Two, three months, something like that.
Q. What was he there for, if you know?
A. He come tried to get my daughter to go out with him.
Q. What did Little Hube say?
A. He was upset with his wife, that they had had an argument and he said he was going to get rid of that woman one way or the other.
Q. What did you say?
A. Told him he ought to go home to his wife and kids and take care of them.
Q. Did he say anything about his kids?
A. He said his mother told him she was going to help him take care of them.
Q. Now, I take it you have known Little Hube for a while?
A. Yes. Basically about all his life.
Q. Have you had any disagreements or arguments or fights with Little Hube or any members of his family?
A. No, he has always treated me decent.
Q. Are you all presently on the outs? Are you mad at him or anything?
A. No.
THE COURT: All right. Where did this conversation take place?
A. At my kitchen table.
THE COURT: You said he ought to go home to his wife and children?
A. Wife and kids, yes. I thought he should.
THE COURT: What did he say to you?
*702A. He was going to get rid of her one way or the other. I presume he meant he was going to get a divorce.
Testimony of Hazel Miller, Habeas Hearing Transcript, pp. 47-50, Feb. 1, 1999.
In addition to the confession to Letner and Parker and the “get rid of’ statement to Miller, there was additional evidence incriminating Muncey at the habeas hearing. Hubert Muncey insisted he was at the dance until it ended on Saturday night and then went home after midnight to find his wife missing. This testimony is inconsistent with the testimony of Dennis Wallace, the security guard on duty at the dance. He testified:
Q. All right. During that period of time did you see Little Hube Mun-cey at the dance?
A. Yes, sir, I did.
Q. And during that period of time before the dance was over did you see Little Hube Muncey leave the dance?
A. Yes, sir, I did.
Q. All right. Then subsequent to that, did you see Little Hube Muncey return to the dance?
A. Not that I can recall.
Q. Do you remember approximately what time Little Hube Muncey left the dance that evening? When you say saw him leave, before it was over?
A. I would say around 10:00, 10:30, 9:30 to 10:30. I don’t know exactly.
Q. You don’t recollect now having seen him come back to the dance?
A. No.
Testimony of Dennis Wallace, Habeas Hearing Transcript, pp. 56-57, Feb. 1, 1999.
Mrs. Artie Lawson testified that she is “a good friend” of Little Hube’s and that he came to see her Sunday morning to get her to help him establish an alibi for Saturday evening. This conversation on Sunday morning took place several hours before the body was found and before it became clear that Mrs. Muncey was murdered, not just missing. Mrs. Lawson testified:
A. Well, this Little Hube, he come to my house that morning on Sunday morning and he asked me if anybody come to say anything, you know, talk to me, to tell them that he was there at six o’clock.
A. He asked me if anyone, you know, come and asked me anything to tell him that he had, that I was at the dance that Saturday night — but I was not. He said that he had eat breakfast down there [at my house] at six o’clock that Sunday morning and he did not.
Testimony of Artie Lawson, Habeas Hearing Transcript, pp. 20-22, February 1, 1999.
Hours before his wife’s body was found, Muncey went to Mrs. Lawson and tried to establish an alibi for Saturday night. He in fact had no alibi. He left the dance an hour and a half early and is unable to account for his whereabouts at the very time the county coroner gave as his best estimate as the time of death. Then early the next morning before the body was discovered, he went to Mrs. Lawson in an effort to enlist her help in establishing an alibi.
The evidence of what happened at the Muncey home on Saturday evening further undermines the case against House and further incriminates Muncey. Pamela Luttrell and her husband lived across the *703road from the Munceys. Mrs. Luttrell testified that Carolyn Muncey came to her house sometime around 8:00 P.M. on Saturday evening with her children and “stayed an hour or an hour and a half’ and “said that Little Hube had gone to dig a grave and he hadn’t come back.” Testimony of Pamela Luttrell, Addendum No. 4, Vol. II, pp. 632-38. She testified that between 10:00 and 11:00 “within an hour or so after she left” with her children to go back home, Mrs. Luttrell believed she heard Little Hube’s car coming back home:
Q. Now, after she left, did you see or hear anything else that night that drew your attention to outside directly in the vicinity of Carolyn MunceyA home?
A. I heard a car rev its motor as it went down the road.
Q. And you had heard that sound before or you thought you had heard that sound before, hadn’t you?
A. Well, I have heard a sound like it.
Q. And that was the impression you got that night, wasn’t it, that that was Little Hube’s car revving up?
A. Yeah, just going by.
Q. And when he’d get to the house there, he would rev up. Is that correct?
A. And then keep going.
Q. Now that would have been somewhere around — after Carolyn had left and before you went to bed. You went to bed within an hour or so after she left?
A. Uh, huh (meaning yes by sound), I was on my way to bed when I heard it.
Id. at pp. 641-42.
Mrs. Luttrell testified that the car was coming from the direction in which Mun-cey’s car would have traveled coming from the dance, from Kitts Road toward Taze-well Pike and “revved up” when he got to the house, as he usually did. Mrs. Lutt-rell’s testimony is consistent with the testimony of Constable Wallace that Muncey left the dance well before it ended. It is inconsistent with Muncey’s testimony that he stayed at the dance until it ended. Together with the testimony of Wallace, Mrs. Luttrell’s testimony places Muncey at home between 10:00 and 11:00 that evening — the approximate time that the coroner testified that the murder occurred.
In addition, Pamela Luttrell’s testimony about what happened later that evening is also completely inconsistent with the theory that House came to the Muncey home on foot during the evening and abducted Carolyn and murdered her. Luttrell testified that Little Hube, along with the two children, Laura and Matt, came to her home at about 1:00 A.M. that evening and told her Carolyn was missing. At that time, Luttrell questioned Laura in detail about what had happened that evening after she got home from her earlier visit to Luttrell’s house. Laura said that she and her younger brother had gone to sleep:
Q. Mrs. Luttrell, Laura talked with you after she discovered her mother missing?
A. Yes.
Q. Did she tell you whether or not she woke up one time or two times, as far as different people coming to the house asking questions?
A. Well, she said she heard a horn blow, she thought she heard a horn blow, and somebody asked if Bubbie was home and her mama, you know, told them — no. And then she said she didn’t know if she went back to sleep or not, but then she heard her mama going down the steps crying *704and I am not sure if that is when she told me that she heard her mama say — Oh, God, no, not me, or if she told me that the next day, but I do know that she said she heard her mother going down the steps crying.
Id. at 658.
Luttrell further testified that Laura told her that the man who asked for “Bubbie” after the horn blew sounded like her grandfather, whom she called “PawPaw.” Luttrell said that “Bubbie” was a family name not normally used by others in the community who called Muncey “Little Hube.” Laura said nothing in answer to Pamela Luttrell’s questions that evening about anyone saying during the evening that Little Hube had been involved in an automobile accident. This evidence seems completely inconsistent with the State’s theory that House walked almost two miles at around 10:30 on Saturday evening to the Muncey home where he abducted and murdered Carolyn Muncey. It is clear that House did not have a car that evening, did not blow a car horn, would not have called Little Hube “Bubbie,” did not enter the Muncey home, wake up the Mun-cey children or talk to Carolyn Muncey within the ear shot of the children. In the contemporaneous, immediate conversation between Mrs. Luttrell and Laura, Laura said that she heard a horn blow, someone ask for “Bubbie,” who was not there and that person “sounded like PawPaw,” who called Little Hube by his family nickname, “Bubbie.”
Although it is true, and highly incriminating, that House left his home on foot during a similar time on Saturday evening and returned with bruises and in a disheveled condition, Pam Luttrell’s testimony that Little Hube came home around 10:30 and Laura’s testimony about the hornblow-ing and the “PawPaw” voice leaves no room for the State’s theory that House walked two miles to the Muncey house and murdered Carolyn Muncey and then walked two miles home within a relatively short period of time. The inference that he murdered Carolyn Muncey from the fact that he left home on foot on Saturday evening and returned with braises and in a disheveled condition cannot be reconciled with Mrs. Luttrell’s testimony about when Little Hube came home and Laura’s answers to her questions about what happened that evening. Mrs. Luttrell’s testimony is consistent with the testimony of Constable Wallace that Mr. Muncey left the dance at about 10:30 P.M. as well as Muncey’s confession, his previous threats and brutal treatment of his wife and his attempt to establish an alibi through Mrs. Lawson on Sunday morning.
This particular highly incriminating evidence about House’s returning home in a disheveled condition on Saturday night with “blood on his pants,” and his semen on the victim’s night gown, however, does go a long way in explaining the jury’s capital conviction of House, a stranger in a community with a record of sexual assault, especially when it did not have any of the newly discovered evidence undermining the prosecution’s theory of the case. In the absence of the newly discovered evidence, the State’s theory seemed convincing. In light of the new evidence, it is no longer tenable. In my view, it is more probable than not that House is innocent of the homicide and that Mr. Muncey killed his wife, as he confessed. Six witnesses— Letner, Parker, Miller, Wallace, Lawson, and Luttrell — now provide either direct or circumstantial evidence that Mr. Muncey killed his wife. He had a motive. The motive attributed to House no longer exists.
*705[[Image here]]
V. The Unreliability of the Hensley Testimony
The preceding map of the area where Carolyn Muncey’s body was found is necessary to understand the weakness of the testimony of the one remaining witness, Billy Ray Hensley, who gave highly incriminating evidence at the 1986 trial. The opinion of our court accurately characterizes Hensley’s testimony as a series of “inconsistent statements about when and where he saw House on Ridgecrest Road” supposedly “carrying a black rag.” The prosecution claimed at the trial that the “black rag” was House’s blue shirt which he had lost the night before and’ had just retrieved after climbing down the embank*706ment where he had left Carolyn Muncey’s body.
House explained his presence near Mun-cey’s house at the habeas hearing. He testified that he regarded “Little Hube” and Carolyn Muncey as friends and he heard on Sunday morning that she was missing. He borrowed the car of his girl friend, Donna Turner, and drove down to the area on Ridgecrest Road where he knew they lived. This testimony is corroborated by other witnesses. He missed the driveway which was hidden in trees and undergrowth and turned around and parked the car near Merritt’s barn and walked back up about 90 feet and found the driveway and saw that Muncey’s car was not at home. He walked back down Ridgecrest Road to his car:
Q. You went back to your car. Did you get in?
A. Yes.
Q. And start driving?
A. I got in, pulled out. I was going to — between Little Hube’s and Taz-well Pike there is another dirt road like a dead end.
Q. Somewhere off the chart?
A. Yeah, it is on his side where he lived. It is on that side of the road. It is just a dirt road, dead end. Bill Silvey had told me that people went to drink down there. Donna had told me that people went to drink down there. Donna had told me she had seen him drinking. I thought why not look there. As I was going up there, then Bill Hensley, I guess that is the name, was in the cai\ I saw him and he was coming towards me. I was going toward him. I waved him over. He stopped.
Q. He was in the little blue car?
A. Right. I asked him if he knew Little Hube. He said he did. Asked him if he had seen him, he said he hadn’t, didn’t see him around there anywhere.
Testimony of Paul House, Transcript of Habeas Hearing, p. 91, Feb. 3,1999.
Hensley had also testified at the 1986 trial that House while in his car waved him to stop at that location on Ridgecrest Road and told him he was looking for Little Hube.
The incriminating part of Hensley’s testimony at the trial was that as he was coming down Bear Hollow Road approximately 100-150 feet from its intersection with Ridgecrest Road he saw House coming up an embankment where the victim’s body was later found:
Q. Now, you say that as you were coming down, we will call this Bear Hollow Road, just so the jury and everybody will know the roads we are talking about. Before you got to this intersection, before you turned left [onto Ridgecrest Road] to go to Tazewell Pike, you say you saw my client, Mr. House?
A. Yes, sir.
Q. All right. You weren’t at the intersection, were you?
A. No, sir.
Q. In fact, you have previously told us you were somewhere between 100 and 150 up from the intersection, weren’t you — 100 to 150 feet up from the intersection?
A. Yes, sir.
Testimony of Billy Hensley, Addendum No. 4, Vol. V, p. 717.
After Hensley turned onto Ridgecrest road, he did not see House, according to his testimony:
Q. From the time that you made your left-hand turn, what was the first *707thing you saw in relationship to Mr. House or his vehicle?
A. I saw his vehicle.
Q. And at no time after you made your left-hand turn could you say where Mr. House was in relationship to the bank, the side, the road or anywhere in there, is that correct?
A. No sir, I could not.
Id. at 719-20.
There are two serious problems with this testimony. It is directly contrary to the statement Hensley gave to the police on the Sunday evening after the victim’s body was found. In that statement he said that he turned left at the intersection and he:
traveled about 500 feet on Ridgecrest Road when I saw about a ’66 or ’67 white Plymouth sitting on the left side of Ridgecrest Road and I saw a man, later identified to me as Paul Gregory House enter the roadway from the right-hand side of the road. He was coming up over the bank, and he had a black rag in his hands and he was wiping his hands. I drove on by the man and went to Little Hube’s driveway ...
Statement of Billy Ray Hensley taken by TBI on July 14, 1985, Addendum No. 1, p. 139; see also Testimony of Billy Hensley, Addendum No. 4, Vol. V, p. 729.
Hensley testified on cross-examination about the statement:
Q. Did you tell the police that oh Sunday at 10:45 p.m., did you talk to them Sunday night, the same night—
A. Oh, yes.
Q. And you gave them that statement, did you not?
A. Yes, sir.
Testimony of Billy Hensley, Addendum No. 4, Vol V, p. 730.
This‘Statement that Hensley was at the embankment and saw' House “coming up” is clearly contrary and unreconcilable with his trial testimony that he saw House 100— 150 feet up Bear Hollow Road and did not see him after- he made the turn onto Rid-gecrest Road. The cross-examination of Hensley revealed not only these contradictions in his statements about where he was when he claimed to see House, as our court’s opinion recognizes, but also it revealed the fact that as Hensley drove down Bear Hollow Road that various obstructions like Merritt’s barn and trees would have prevented him from seeing anyone in the vicinity of the embankment where he claimed to have seen House. The map itself, the testimony and photographs, show conclusively that Hensley could not have seen House from that location on Bear Hollow Road.
Hensley’s contradictory and implausible testimony is the last incriminating straw in the case against House. Like the semen evidence and the blood evidence it is no longer probative. It is a slender reed indeed on which to hang House’s conviction and death sentence.
VI. Conclusion
This is a death penalty case based purely on circumstantial evidence in which the prisoner has maintained his innocence during 20 years of incarceration. I would hold that he has easily met the requirements necessary to travel through the gateways of actual innocence of both the death penalty and the homicide by completely disproving the motive for the crime and the aggravator (rape) and through persuasive evidence undermining the main circumstances that gave rise to his conviction (the blood evidence and the Hensley testimony).- This body of evidence alone meets both the Sawyer standard, that petitioner show by clear and convincing evi*708dence that but for constitutional error at trial, no reasonable juror would have found him eligible for the death penalty and the Schlup standard, that petitioner show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The Court stated in Schlup that since gateway claims assert constitutional error at trial, these “convictions may not be entitled to the same degree of respect” as convictions that are the product of error free trials. Schlup, 513 U.S. at 316, 115 S.Ct. 851. At a minimum, based on the newly presented evidence we should allow House to pass through the gateway so that his constitutional claims of ineffective assistance of counsel at the guilt and penalty phases of the case become cognizable again. The remedy for passing the gateway test is a remand for further proceedings on the underlying constitutional claim.
In this case, however, I would go further and issue the writ of habeas corpus because the prisoner has affirmatively established a free-standing case of actual innocence. This is that rare and extraordinary case where petitioner has provided “a truly persuasive demonstration of ‘actual innocence’ ” that should free the prisoner immediately. Herrera, 506 U.S. at 417, 113 S.Ct. 853. Through extremely persuasive and affirmative evidence that Mr. Muncey killed his wife, House has shown that it is highly probable that he is completely innocent of any wrongdoing whatever. There is no reasonable basis for disbelieving the six witnesses who now incriminate Mr. Muncey as the perpetrator of the crime. The most compelling part of this new testimony involves his confession to the murder in front of two witnesses who have no connection to House and no bias against Mr. Muncey. Furthermore, before his wife’s body was even located, he solicited a neighbor to fabricate an alibi on his behalf. He was heard returning home around the time of the murder. And considering his history of domestic violence and his wife’s plans to leave him he had a motive to kill. In contrast, there is no evidence of a motive for House. All of the state’s physical evidence, both blood and semen, allegedly tying House to the murder, has been effectively rebutted. The new body of evidence as a whole so completely undermines the case against House and establishes a persuasive case against Muncey that, had it been presented at trial, no rational juror could have found evidence sufficient for conviction. The new evidence so completely turns the case around that the proof is no longer constitutionally sufficient to warrant a conviction or imposition of the death penalty. Thus House should be immediately released.
Justice Scalia has referred to the question before us of actual innocence as death penalty’s most “embarrassing question,” a question he hoped “with any luck we [the Supreme Court] shall avoid ever having to face” in a “convincing” case. Herrera v. Collins, 506 U.S. at 428, 113 S.Ct. 853. Justice O’Connor has referred to this “embarrassing question” as a serious current problem: “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” Speech to Women Lawyers in Minnesota, July 2, 2001.
This case and the few empirical studies that we have reinforce Justice O’Connor’s view that the system is allowing some innocent defendants to be executed. See Radelet & Bedau, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21-179 (1987) (includes tables and summary description of numerous capital cases in which innocent defendants were probably executed); Zimming, The Contradictions of American Capital Punishment 149-178 (2003) (summary of the studies, including study by Death Penalty *709Information Center describing 98 prisoners fully exonerated after time on death row between 1973 and 2001).
High on the list of the causes for mistakes are the kinds of errors we see in this case: the misinterpretation or abuse of scientific evidence, the adverse inferences drawn from the prior record of a defendant, particularly one who is a stranger in the local community, the failure of counsel to uncover (until it is too late) witnesses who could exonerate the defendant, and the existence of one or more other suspects with a motive to commit the offense. Once the initial trial and appeal have occurred, it is clear from the studies that the state, and its officials who have prosecuted, sentenced and reviewed the case, are inclined to persevere in the belief that the state was right all along. They tend to close ranks and resist admission of error. Intelligent citizens who strongly believe in the reliability of the capital sanction are also inclined to persevere in the belief that a case raising the “embarrassing question” will never really arise and close ranks with the state in resisting the admission of error. This case is a good example of how these errors can lead to the execution of a defendant who is actually innocent.
. Justice Blackmun for himself and Justices Stevens and Souter also defined a standard for free-standing actual innocence cases stating that "a prisoner must show not just that there was probably a reasonable doubt about his guilt but that he is probably actually innocent.” 506 U.S. at 434-35, 113 S.Ct. 853 (Blackmun, J., dissenting). The White standard does not appear to be at odds with the formulation suggested by Justice Blackmun. Petitioners who could meet the White "no rational juror” test would also meet the Blackmun "probably innocent” standard.
. Citations to the state trial record will reference the multi-volume Addenda filed during the federal habeas proceeding in Case No. 3:96-CV-883 (E.D.Tenn., Jarvis, J.)
. Citations to the federal Habeas Hearing will be referenced as "Testimony of [witness], Transcript of Habeas Hearing, p. _, [date].”
. One technique favored by forensic professionals is to preserve blood samples on dry cotton sheeting or cloth in order to store the samples with minimal degradation over time.
. Despite the State's implication that it was somehow House’s fault that his experts did not have a chance to examine the evidence until three months after the murder, House filed a motion in late July 1985 to gain access to the evidence gathered at the time of the murder for purposes of testing. Motion for Samples, filed July 29, 1985, Addendum No. 1, pp. 5-6.
. Clothing evidence is generally not stored in plastic bags because the bags do not "breathe” and any biologic material on the clothing will degrade faster when in a plastic bag than a paper bag. Detective Larry Johnson, an expert on the packaging and handling of evidence, testified that clothing that might contain body fluids should not be placed in plastic because the plastic tends to draw moisture and starts to break down the fluids more quickly. Testimony of Larry Johnson, Transcript of Habeas Hearing, p. Ill, Feb. 1, 1999.