concurring.
I concur in the principal opinion. I write separately to emphasize the eviden-tiary aspects of this case that call for the habeas corpus remedy recognized by the principal opinion, rather than the remedy favored by either dissenting opinion.
After a judgment in a death penalty case is final, state courts are not limited to claims of constitutional violations when actual innocence is claimed. State courts can be concerned about — and available to grant relief to — an innocent person even where there is no constitutional violation.
Both the principal opinion and the dissents recognize that the state court’s writ of habeas corpus is the appropriate remedy in cases of actual innocence. Even the dissents recognize that the judgment against Amrine is not entitled to the respect normally accorded a final judgment.
This is a highly unusual case. All three witnesses who told the original trial court jury that Amrine killed Barber have recanted their testimony.
The law usually does not condone recantations; they are not normally recognized to overturn a lawful conviction and sentence. See State v. Harris, 428 S.W.2d 497, 502 (Mo.1968).
While relief by habeas based on actual innocence and manifest injustice is not limited to death penalty cases,1 death penalty eases are different. For one thing, the death penalty statute requires this Court to assess the “strength of the evidence” in determining whether to uphold a death sentence. Section 565.085.3. See State v. Chaney, 967 S.W.2d 47 (Mo. banc 1998). For no other crime is an appellate court given this power to review a sentence.
*550For this reason, it is particularly true in death penalty cases that the duty to assess the strength of the evidence is an ongoing duty. The applicable standard in habeas corpus proceedings is to prevent “manifest injustice.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001). Execution of an innocent person would be manifestly unjust, even if that person received a constitutionally adequate trial.
Who Should Determine Which Time the Witnesses Were Lying?
With the witnesses’ recantations, we do not know whether Amrine is actually innocent. We similarly do not know whether he is guilty, despite the final judgment in his case. The question is: which time were these three witnesses lying? When they testified against Amrine, or when they recanted? As Judge Benton aptly notes, facts do not prove themselves.
What we do know is that all three witnesses — upon whom Amrine’s conviction and sentence of death solely depend — are liars.
Judge Benton would appoint a master who would serve this Court by listening to testimony and making an assessment of credibility to guide this Court in determining which time these witnesses were lying. In a proceeding with this Court’s master, Amrine would have the burden of showing that the original testimony was false. It would be Amrine’s burden to overcome the respect that is due to the final judgment against him. If the finder of fact is unpersuaded — that is, that this Court through its master cannot know for sure which time the witnesses were lying — Amrine’s original judgment would stay in force.
The circumstances of this case favor the remedy of a new trial, if the state chooses not to release Amrine but to try him again for this killing. The remedy chosen in the principal opinion seems more suitable, because if there is a credibility determination to be made, it will be made by a jury. There is no physical evidence linking Am-rine to the murder. The correctional officer, Officer Noble, identified another man as the killer, and six inmates testified that Amrine was playing cards in another part of the recreation room when the attack occurred.
In the peculiar circumstances of this case, the state should get no benefit from the original judgment because it is based solely on the testimony of liars. The state, not Amrine, should have the burden of persuasion.
If the state chooses to call the three recanted witnesses, the state can use their original trial testimony as impeachment, if they testify consistently with their recanting. Prior inconsistent testimony can be received and used as substantive evidence of a criminal offense. Section 491.074; State v. Blankenship, 880 S.W.2d 1 (Mo. banc.1992). The state may have other evidence that it did not choose to use at the original trial; it may use the evidence if it decides to try Amrine again for this crime. From the record as it appears here, however, it seems that the state only has the testimony of these three witnesses — now factually if not legally discredited — to seek to convict Amrine.
Should the state again try Amrine? From this record, he does not look guilty. But perhaps the state has a better view.
. Missouri has, for example, a statute that gives a right to review an otherwise final judgment where DNA evidence may exist to exonerate a convicted felon. Section 547.035, RSMo 2002; section 547.037, RSMo 2002.