Jon Keith Smith was convicted of first-degree felony murder, 1 armed criminal ae *1047 tion, robbery, and burglary in Missouri state court and was sentenced to five terms of life imprisonment. He appeals from the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Although we do not lightly overturn this thirteen-year-old state conviction, we conclude that we are compelled to do so. We reverse and remand the case with directions to issue an appropriate writ because the State’s use of inconsistent prose-cutorial theories violated Smith’s due process rights in a way that rendered his convictions fundamentally unfair.
I.
On the morning of November 27, 1983, Police Officer James Hughes discovered the dead bodies of Pauline and Earl Chambers in their home in Kansas City, Missouri. A butcher knife found on a bed near the bodies was determined to be the murder weapon.
During the evening of November 26, 1983, Smith, James Bowman, Anthony Ly-tle, and Donald Dixon, all then juveniles, set out to find a house to burglarize. Testifying for the State at Smith’s trial, held in March 1987, Lytle stated that the group began to knock on the front doors of neighborhood homes. If someone answered, the group asked if there was a party inside. At those houses where no one responded, the teenagers unscrewed the porch light bulbs, intending to return later to complete a burglary. When the group approached the Chamberses’ house they noticed that the storm door had been broken and saw a footprint on the front door, which was ajar. Although Smith believed that the house belonged to an elderly white couple who were rarely home, Lytle observed a black man through the window. The group concluded that someone else was in the process of burglarizing the house and decided to “rob the burglars.”
Smith and Bowman departed to obtain Bowman’s car, which they had left down the street at Smith’s house, while Lytle and Dixon watched the house from the bushes. The car contained Bowman’s shotgun, which the group intended to use to threaten the burglars. When an individual left the house carrying a television, Dixon recognized him as Michael Cunningham. Dixon spoke with Cunningham, who agreed to allow the Dixon-Lytle group to enter the house and steal what remained of the property. When Smith and Bowman returned in the car, Dixon explained that they now had “permission” to enter the house, and the four entered with Cunningham.
Lytle stood guard at the front door while Smith, Bowman, and Dixon searched the house for property worthy of theft. Smith ran to the kitchen, saying “oh, oh, a microwave!” and Bowman to an empty front bedroom. Shortly thereafter, Smith and Bowman left the house together, Smith carrying a microwave and Bowman carrying a television. From this point, Lytle’s accounts of the incident vary.
According to Lytle’s testimony at trial, after Smith and Bowman departed Lytle ran to the back of the house to find Dixon. On the way, Lytle saw a body lying in a doorway and asked Cunningham, ‘What did you do to this guy?” Cunningham responded, “Don’t worry about it. We took care of it.” Lytle then “started hollering about ‘We got to go now because he did something to this guy,’ ” to Dixon, who grabbed a television and then fled the scene with Lytle, joining Smith and Bowman and driving away from the premises. This version of the events is consistent with a statement Lytle made to police on November 30,1983.
On December 2, 1983, however, Lytle told police a different version of the events, one which he later recanted. Lytle stated that his group was inside the house before the Chamberses were murdered. He said that he heard the Chamberses talking to one of the burglars and that a scuffle ensued. He heard Mr. Chambers say “no, no, no” and then heard “sounds of pain.” Lytle said that he went to see what was happening and observed Bowman, who had returned to the house, kneeling over Mr. Chambers and stabbing him with *1048 a pocket knife. He said that Bowman had blood “all over his jacket.” Cunningham and another adult, identified as Rodney Cayson, were also in the back bedroom.
At Smith’s trial, the State used Lytle’s December 2, 1983, statement to impeach his in-court testimony and as substantive evidence of Smith’s guilt by relying upon section 491.074 of the Missouri Revised Statutes, which was enacted after the Chamberses had been killed and which authorizes the use of prior inconsistent statements as substantive evidence.
See State v. Bowman,
In April of 1987, after Smith’s trial and conviction, the State indicted Cunningham for the murders. At Cunningham’s trial, the State relied on testimony from Lytle, consistent with his November 30, 1983, statement and his testimony at Smith’s trial, that the Chamberses were already dead when he and his companions arrived. The December 2, 1983, statement was mentioned but not admitted. The jury convicted Cunningham of two counts of first-degree murder, two counts of armed criminal action, one count of first-degree robbery, and one count of second-degree burglary. His convictions were affirmed in
State v. Cunningham,
Smith’s appeal from his conviction included a claim challenging the sufficiency of the evidence based on Lytle’s recanted statement. The Missouri Court of Appeals affirmed Smith’s convictions and sentence in an unpublished opinion on May 3, 1988. An application to transfer to the Missouri Supreme Court was denied on September 13, 1988. Smith filed a federal habeas petition in June 1991, again including a claim about the insufficiency of the evidence based on Lytle’s statement. The federal district court denied both the petition and Smith’s application for a certificate of probable cause. It denied the sufficiency of the evidence claim on the' merits. On January 29, 1993, we remanded the case for further proceedings based on a claim of newly discovered evidence. On August 4, 1995, the district court again denied the petition, and on November 16, 1998, we granted Smith a certificate of appealability on his claim of insufficient evidence regarding the following question: “Does the fact that the State secured Appellant’s murder conviction on the basis of testimony from Anthony Lytle that was inconsistent with, if not diametrically opposed to, the testimony that Lytle subsequently gave at Michael Cunningham’s trial ... render Appellant’s murder conviction void for want of due process?”
We answér the question in the affirmative.
*1049 II.
Because Smith’s petition for habeas corpus was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (AEDPA), we apply the pre-AEDPA standard of review to his claim.
See Lindh v. Murphy,
III.
A.
The question before us is whether the Due Process Clause forbids a state from using inconsistent, irreconcilable theories to secure convictions against two or more defendants in prosecutions for the same offenses arising out of the same event.
We begin with the government’s fundamental interest in criminal prosecution: “not that it shall win a case, but that justice shall be done.”
Berger v. United States,
Two courts of appeals have recognized that inconsistent prosecutorial theories can, in certain circumstances, violate due process rights. In
Thompson v. Calderon,
a plurality of the Ninth Circuit held that the state of California violated a defendant’s due process rights by arguing at Thompson’s trial that he alone committed a murder, while arguing at a subsequent trial that another defendant actually committed the same murder.
In
Drake v. Francis,
the Eleventh Circuit evaluated two prosecution arguments for two defendants convicted of the same murder. The court found that the two theories were “fairly consistent” because both prosecutors had argued that both defendants played a role in the murder; because their arguments varied only with regard to the extent of involvement, no due process violation had occurred. 727 F.2d
990, 994
(11th Cir.1984). On rehearing en banc, the majority declined to reach the issue, granting relief on other grounds.
Drake v. Kemp,
The Fifth Circuit has also discussed the problem of seemingly inconsistent prosecu-torial arguments for different defendants at different trials, but in the context of estoppel, both collateral and judicial.
See Nichols v. Scott,
In the present case, the prosecutor who handled Smith’s case also handled Cunningham’s and, we note, the cases against all the other defendants. When trying Smith, the State asserted that Lytle’s December 2, 1983, statement was the truth, that Lytle had made up his in-court testimony to try to avoid his and his associates’ convictions for felony murder, and that Bowman had killed the Chamberses after Smith’s group entered the house. See, e.g., Tr. on Appeal, Vol. II at 597 ([Prosecutor:] “So that’s why the Chambers were killed. Mentality of Bowman: avoid detection.”). Subsequently, when trying Cunningham, the State contended that Lytle’s November 30, 1983, statement was the truth, did not introduce the videotaped December 2,1983, statement, and objected to a line of questioning by defense counsel based on the theory that Lytle was lying about Cunningham’s complicity in order to protect his friends.
In short, what the State claimed to be true in Smith’s case it rejected in Cunningham’s case, and vice versa. The State points out in its brief that “[t]here is no question that the victims were killed during the burglary either before or after the petitioner began to participate.” This is precisely the point — the State argued in one case, “before,” and in another ease, “after,” in its successful attempt to prove beyond a reasonable doubt that the Cham-berses were murdered at two different times. The state court formulated jury instructions that attempted to account for this difference in timing and the conclusions which flow from it.
See
Legal File, jury instr. 7.
3
This before/after distinction
*1051
is the heart of the prosecutorial inconsistency that allowed the State to convict as many defendants as possible in a series of cases in which the question of timing was crucial.
See State v. Bowman,
A similar but more common situation is that in which a prosecution witness proffers testimony that is inconsistent with his previous testimony elsewhere. In
United States v. Albanese
the defendant claimed that the prosecutor’s reliance on one witness’s inconsistent testimony constituted misconduct that resulted in a hung jury, thereby precluding any additional prosecution under the Double Jeopardy Clause.
Smith contends that this manipulation of the evidence deprived him of due process and rendered his trial fundamentally unfair. We agree. The State’s use of factually contradictory theories in this case constituted “foul blows,” error that fatally infected Smith’s conviction. Even if our adversary system is “in many ways, a gamble,”
Payne v. United States,
Suppose, for example, that the prosecutor had argued a murder theory based on Lytle’s December 2, 1983, statement to convict Smith in Courtroom A in the morning, then walked upstairs to Courtroom B and argued a contradictory murder theory based on Lytle’s November 30, 1983, statement to convict Cunningham in the afternoon? Again, suppose that Smith and *1052 Cunningham had been tried jointly. Would the prosecutor have been entitled to ask the jury to accept as true both of Lytle’s accounts of who had murdered the Chamberses in an attempt to secure convictions of both Smith and Cunningham?
We do not hold that prosecutors must present precisely the same evidence and theories in trials for different defendants. Rather, we hold only that the use of inherently factually contradictory theories violates the principles of due process. For example, the passage of time between trials, such as the four months’ time between Smith’s trial and Cunningham’s, may be a legitimate excuse for minor variations in testimony or defects in memory, as seems to have occurred in
Albanese. See
Smith’s situation is unusual, and we doubt that claims such as his will often occur. To violate due process, an inconsistency must exist at the core of the prosecutor’s cases against defendants for the same crime. In the present case, the State’s zeal to obtain multiple murder convictions on diametrically opposed testimony renders Smith’s convictions infirm. “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”
See Brady v. Mainland,
B.
To obtain habeas relief under the Due Process Clause, Smith must demonstrate that the State’s error rendered unreliable his convictions involving the violence done to the Chamberses. We find that Smith has succeeded in doing so. We note that Smith has not contested the burglary conviction. Moreover, we do not find the burglary conviction to be undermined, given that the inconsistency centers on the charges arising from the Chambers-es’ deaths, not on the charge for Smith’s theft of property from the home.
In its unpublished memorandum decision affirming Smith’s conviction, the Missouri Court of Appeals discussed with approval the jury instruction given at Smith’s trial, stating that if the jury found that Cunningham or Cayson killed the Cham-berses, the “jury would have to find appellant [Smith] not guilty.” Thus, the jury would have had to find that someone other than Cunningham or Cayson was the murderer in order to convict Smith.
Absent the State’s argument that Lytle’s December 2, 1983, statement incriminating Bowman was the truth,—i.e. had the State presented Lytle’s testimony as it did during Cunningham’s trial—the State had no evidence to prove that Bowman was the killer and that Smith was thus guilty of felony murder, armed criminal action, and first-degree robbery. Bowman’s shoes did not match the bloody footprints in the room. Bowman’s prints were not found on the butcher knife determined to be the murder weapon. No blood was found on Bowman’s clothes. Aside from Lytle’s testimony, the State’s strongest evidence against Smith consisted of a palm print on a stolen television found at his residence and a shoeprint from the residence which matched that of Donald Dixon’s shoes. The State presented evidence that the Chamberses were murdered, but on the key question of the time at which the murders were committed, the State’s evidence—Lytle’s testimony—was offered to prove two different versions, which the State then used in different, inconsistent ways during the trials.
Therefore, absent the State’s actions, the outcome of the trial probably would have been different; Smith likely would not have been convicted of murder, armed criminal action, and robbery. As the State asserts, either Smith arrived before the murder or he arrived after; once the State’s use of inherently contradictory theories is removed, the remaining evidence submitted during his trial points to “after.” *1053 Accordingly, Smith’s convictions for murder, armed criminal action, and robbery must be vacated.
The State argues that Smith could have been convicted for felony murder under the theory the prosecution put forth at Cunningham’s trial. 4 This assertion is misdirected. The State proved its case against Smith under the Bowman-as-murderer theory, and speculation regarding what the jury might have done under different circumstances is not a basis upon which to dispense with the State’s due process duty of fair prosecution. Our analysis involves the fairness and outcome of the trial at issue, Smith’s trial. Assuming, arguendo, however, that the State’s argument is relevant, given the evidence in the case we find it unlikely that a jury would have convicted Smith under the State’s theory presented at Cunningham’s trial, which established through Lytle’s in-court testimony that Cunningham and Cayson were responsible for the Cham-berses’ deaths before Cunningham re-entered the house with Lytle, Smith, Bowman, and Dixon, and that Cunningham then told Lytle not to worry because they had “taken care of’ the Chamberses. The State itself had originally dismissed the charges against Smith for insufficient evidence for the crimes of violence. See Dep. of Prosecutor at 3-4. We conclude that it is unlikely that the jury could have found beyond a reasonable doubt that Smith was guilty of felony murder if it had been presented with the State’s Cunningham-trial theory that the Chamberses had been killed prior to the entry into the home by Smith and his cohorts.
IV.
The State argues that a holding that the State’s use of factually contradictory theories violates due process constitutes a new rule of law that may not be applied retroactively to Smith under
Teague v. Lane,
Our holding in this case is a decision dictated by precedent, for we do not break new ground nor impose a new obligation on the government. Neither the due process requirement that the government prosecute fairly in a search for truth nor the prosecutor’s role in such a prosecution constitutes a new rule of law. The prosecutor “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”
Berger,
Even if our holding were to constitute a new rule of law, however, it would fall within the narrow
Teague
exception for cases that establish rules necessary to fundamental standards of fairness and accuracy in the criminal law.
See Teague, 489
U.S. at 312, 109 S.Ct.
1060; Parks,
y.
The judgment is reversed, and the case is remanded to the district court with directions to issue an appropriate writ of habeas corpus vacating Smith’s murder, armed criminal action, and robbery convictions. We have a duty to “dispose of the case summarily, as law and justice require.”
See
28 U.S.C. § 2243 (1999);
Peyton v. Rowe,
We express our appreciation to appointed counsel for her zealous efforts on Smith’s behalf.
Notes
. The statute in effect was Missouri Revised Statutes section 565 .003 (1978), which has since been repealed. Felony murder is now a type of second-degree murder. See Mo.Rev. Stat. § 565.021 (West 1999).
. The State also relied on Lytle’s statement incriminating Bowman to convict Bowman of one count each of first-degree felony murder, armed criminal action, stealing without consent, and second-degree burglary. See
State v. Bowman,
Dixon was convicted of similar charges at approximately the same time as Lytle, before the effective date of section 491.074. Lytle’s statements, however, were not used as evidence at his trial; Dixon incriminated himself in a letter asking Lytle to say that he had worn the shoes that made a shoeprint at the residence. See
State v. Dixon,
. The jury, however, may have remained somewhat confused by the instructions. See Tr. on Appeal, Vol. II at 639-40 (court requiring that jury re-read instructions and redetermine verdicts because of first erroneous verdicts). Indeed, despite the conscientious efforts of the attorneys and the court, jury instructions 6 and 7 are contradictory on this crucial aspect of timing, making it difficult to conclusively determine what the jury found regarding Smith's guilt. On this point, how *1051 ever, we defer to the Missouri courts' interpretation of the instructions, as described in Part B.
. We briefly address the Stale's arguments concerning our decision in a companion case,
Bowman v. Gammon,