¶1dissenting.
¶2It has been 16 years since the brutal killing of Gladys Kuehler and the arrest of Walter Barton. From the first mistrial in 1993 through three completed trials, post-conviction proceedings, multiple appeals, there is a trail of mishaps and misdeeds *712that, taken together, reflect poorly on the criminal justice system.
¶3There are three questions at this stage of the proceedings:
1. Is there sufficient evidence for a jury to convict Barton of capital murder?
2. If the evidence is sufficient to support a murder conviction, should the sentence of death remain intact after this Court’s review under sec. 565.0351 ?
3. Was the state’s conduct that prompted the mistrial of the first trial of this case in 1993, along with its subsequent conduct, sufficient to invoke the double jeopardy protection that would bar subsequent prosecution of Barton? Remarkably, through all the proceedings in this case, that issue has never been addressed by this Court.
¶4Before getting to these points, a brief review of the procedural history is in order.
¶5Gladys Kuehler was brutally stabbed to death in her trailer at Riverview Trailer Park in Ozark, Missouri, in the afternoon of October 9, 1991. Present when the body was discovered were Ms. Kuehler’s granddaughter, Debbie Selvidge, a neighbor, and the defendant Walter Barton. Barton ultimately was charged with the killing.
¶6The state’s case against Barton proceeded to trial in April of 1993. Shortly after the trial began, the defendant objected that the state had failed to endorse any trial witnesses. The judge ruled that the trial could not proceed and granted a mistrial at the request of the defendant Barton.
¶7A second trial began in October 1993. After a several day trial, the jury deadlocked on whether or not Barton was guilty, and the trial judge declared a mistrial.
¶8Barton was brought to trial again in April 1994. He was convicted and, following the jury’s recommendation, was sentenced to death. The appeal of that conviction resulted in reversal by this Court due to improper rulings on objection of the defendant to the prosecution’s final argument. 936 S.W.2d 781 (Mo. banc 1996).
¶9Barton was brought to trial again, in June 1998, following the reversal of the conviction in December 1996. He was convicted and, upon the jury’s recommendation, was sentenced to death. The conviction and death sentence were affirmed by this Court; State v. Barton, 998 S.W.2d 19 (Mo. banc 1999). I wrote a dissent on the basis that the prosecution had given information to a local newspaper that supplied a motive for the killing, which was not in evidence, and which had been read by most of the jury venire prior to trial. See Barton, 998 S.W.2d at 30-32.
¶10Following the affirmance of the conviction and death sentence, Barton brought a motion under Rule 29.15 for post-conviction relief, alleging various irregularities and constitutional violations in his trial. This Court remanded the denial of post-conviction relief to the trial court in an opinion published at Barton v. State, 76 S.W.3d 280 (Mo. banc 2002). In addition to remanding for new findings of fact and conclusions of law, this Court ordered that the case be transferred to another judge. In January 2005, the new judge, John W. Sims, ordered a new trial on both the guilt phase and the death sentence. Judge Sims found that the prosecution had failed to disclose the full criminal history of a jailhouse snitch witness, a woman of many aliases referred to as “Katherine Allen.” Judge Sims found that the state had failed *713to disclose that the prosecutor had agreed to have a Cass County forgery case against “Allen” dismissed in exchange for her testimony in the Barton trial. Judge Sims also granted relief on Barton’s assertion that the state had knowingly used perjured testimony by “Allen.” The state did not appeal Judge Sims’s order granting a new trial.
¶11Following his post-conviction order Judge Sims recused himself and the current judge was appointed to hear the case.
¶12The case came to trial, for the fifth and most recent time, in March 2006. The jury found Barton guilty and recommended the death sentence, which the trial court imposed. This appeal follows.
¶13The facts in this case, which have been adduced in the various trials including the most recent one, are summarized in the principal opinion and in this Court’s previous opinions. They can be referred to here, in summary fashion.
¶14The evidence is certainly not overwhelming. The state has, over the years, bolstered its rather meager case with evidence of the jailhouse snitch, as well as “blood spatter” expert testimony. The one thing that can be said for sure about Walter Barton is that he may well be the only person known to have been in the neighborhood on October 9, 1991, who might have done such a thing.
¶15The evidence that links Barton to the crime is not particularly compelling.
¶161. Is the evidence sufficient to support a murder conviction?
¶17Taking the evidence in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence supporting Barton’s conviction is much as the majority has characterized it. However, I would like to identify the most glaring inadequacies in that evidence. At trial, the state emphasized the check that was found several days after Ms. Kuehler’s body was discovered, stressing that the check had not been entered in Ms. Kueh-ler’s check registry, as was her usual practice. Barton has never denied receiving a check from Ms. Kuehler. If anything, the existence of that check simply reinforces Ms. Horton’s testimony that Barton intended to go to Ms. Kuehler’s trailer around 3 p.m. to pick up a check. Further, there is no eyewitness testimony placing Barton in Ms. Kuehler’s trailer at the time of the attack.
¶18At trial, a so-called “blood splatter expert” testified that the victim was stabbed numerous times, generating “high-impact” blood splatters. That same expert testified that the stains on Barton’s shirt were consistent with a forceful impact wound. Based on the expert’s testimony regarding the “high-impact” blood splattering, and the fact that Ms. Kuehler was stabbed numerous times, one would reasonably expect the victim’s assailant to be covered in blood. However, the only blood found on Barton by one of the examinations was the stain on his shirt. If there were blood stains on Barton’s boots, they apparently were small enough to be obliterated by subsequent DNA testing. There were two small stains on his jeans, which were never positively identified as being Ms. Kuehler’s blood.
¶19There was no testimony at trial that Barton changed clothing or discarded the clothing he had worn to go and visit Ms. Kuehler. How could Barton have perpetrated the kind of violent, forceful attack that killed Ms. Kuehler and walked away quite unstained by the effort?
¶20Barton provided an explanation for the blood on his shirt. He told investigative officers that he had gotten blood on his shirt when he bent down to pull Ms. Sel-vidge away from the victim’s body. The *714sink, soap and towel Barton had used to wash his hands in Ms. Horton’s trailer were all tested for blood, but none was found. The bloodstain on Barton’s shirt is the only physical evidence in any way connecting him to this crime, and that evidence is highly suspect at best.
¶21The state points to the testimony of Carey Maloney, a DNA expert who works for the Missouri State Highway Patrol Crime Laboratory. Ms. Maloney testified that she was “able to determine that there was human blood” on Barton’s blue jeans, and that she was “able to determine that human blood was present on the boots.” However, William Newhouse, also a state’s expert witness, testified that he “found no blood whatsoever on the boots” and that although the stains on the jeans had the “appearance of blood,” he had not performed any tests on those stains to confirm that they were blood. Even if we assume that Ms. Maloney’s testimony was accurate, and that the stains on the jeans were blood, there is no evidence identifying the source of the supposed “blood” stains on the jeans. At best, these contradictions and gaps in the state’s evidence call the validity of that evidence into question, and at worst, they render the only physical evidence in this case utterly inconclusive.
¶22The testimony of “Katherine Allen,” a jailhouse snitch, provided the only evidence of an alleged “admission” made by Barton. “Allen” testified that Barton threatened that he would “kill her like he killed that old lady.” “Allen” is a convicted felon whose crimes have all involved dishonesty, including fraud, forgery, conversion and the use of aliases. Also relevant to an evaluation of the credibility of her testimony is the fact that the state agreed to drop a pending charge against her in exchange for her testimony against Barton. This agreement was not disclosed to the defense and was a reason Judge Sims ordered a new trial in January 2005. “Allen’s” testimony strains credulity and cannot be considered persuasive evidence of an admission by Barton.
¶23Even if the majority may deem this evidence adequate to support a conviction, the strength of that evidence to support the application of the death sentence is another matter.
¶242. If the evidence is sufficient to support a murder conviction, should the sentence of death remain intact after this Court’s review under sec. 565.035?
¶25Section 565.035
¶26Barton invokes Chaney and argues that the evidence of his guilt is insufficient to support the imposition of the death penalty. The majority summarily dismisses this *715argument, saying only that “... the circumstantial evidence was strong, placing appellant alone at the scene of the crime and establishing that the victim’s blood was spattered on appellant’s clothing.” The majority conducts a more thorough discussion of evidentiary sufficiency in the context of Barton’s first point on appeal— that the evidence was insufficient to support a conviction. The majority describes that evidence as follows: “The victim’s blood was found on appellant’s clothing the night of the murder, and a blood spatter expert testified that some of the blood stains were created by the ‘forceful ejection’ of the victim’s blood in appellant’s presence. In addition, appellant made inconsistent statements to the police, telling them that the last time he saw the victim was at her trailer between 2:00 and 2:30 on the day of the murder, though he later admitted that he received the telephone call from Bill Pickering in the victim’s trailer, which was made at 3:15, well after appellant originally said he had left. His mood change before and after the murder, the undue time he spent at the sink in Horton’s bathroom, his statement to Horton not to go to the victim’s trailer, and his insistence that Selvidge not go down the hallway, are all further indications of guilt. Also, the discovery of the disposed-of check, which had been made out to appellant, but had not been entered in the check register, is an indication that appellant tried to rid himself of evidence tying him to the murder. Finally, there was evidence that appellant admitted the crime when Katherine Allen testified that appellant threatened to kill her ‘like he killed that old lady.’ But even without that admission, the evidence of guilt was more than sufficient to support the verdict.”
¶27None of the evidence cited by the majority is direct evidence of Barton’s guilt. In Chaney, this Court overturned the trial court’s imposition of the death penalty, finding that the case fell “within a narrow band where the evidence is sufficient to support a conviction, but not of the compelling nature usually found in cases where the sentence is death.” 967 S.W.2d at 60. In finding that the evidence was insufficient to warrant the imposition of the death sentence, the Court cited the “primarily ... trace and pathological” nature of the evidence, noting the absence of “eyewitness, confession, admission, document, fingerprint or blood evidence directly pointing to the defendant.” Id.
¶28In Chaney, there was substantial physical evidence, including hair and fiber samples indicating that the victim had been present in the defendant’s van the day she was murdered. 967 S.W.2d at 51-52. Investigators also discovered an “awl-like tool consistent with [the victim’s] wounds ... in a tire repair kit” in the defendant’s tool box. Id. at 51. However, the Chaney Court deemed this evidence “not of the compelling nature usually found in cases where the sentence is death.” Id. at 60. The evidence in Chaney was arguably much more damning than that admitted against Barton, and still the Court found that evidence insufficient to warrant imposition of the death penalty.
¶29As was the case in Chaney, here there is no eyewitness testimony or confession. As discussed above, the only evidence of a so-called “admission of guilt” came from the testimony of “Katherine Allen,” a jailhouse snitch witness who has been convicted of six bad check charges, one count of escape, ten counts of forgery, ten counts of theft, one count of conversion and one count of credit card fraud. In exchange for “Allen’s” testimony against Barton, the prosecutor dismissed an additional pending charge of forgery, a fact that the prosecution did not disclose until after the second trial of this case. “Allen’s” testimony concerning Barton’s alleged statement that he *716had “killed that old lady” does not constitute credible evidence of an admission.
¶30There were only two pieces of physical evidence connecting Barton to the victim. The first was the blood splatter on Barton’s sleeve. Although the state’s expert William Newhouse testified that the splatter was consistent with impact with the victim’s body, Barton provided an alternate explanation for the stain. The night Ms. Kuehler’s body was discovered Barton explained the blood on his sleeve to Officer Jack Merritt, saying that his sleeve had grazed the bloody floor of the trailer when he bent over Ms. Selvidge, who was kneeling next to the body. In an interview with Officer Merritt that night, Ms. Selvidge confirmed that Barton had pulled her from the body. At trial, Ms. Selvidge altered her story, testifying that Barton had never entered the bedroom where the body lay. Because of the alternate explanation for the stain and the inconsistencies in Ms. Selvidge’s account, the blood splatter does not indisputably tie Barton to the crime.
¶31The other piece of physical evidence presented at trial was a check for $50 dated the day of the murder, October 9, 1991, made out by Ms. Kuehler to Barton. The check was discovered in a ditch three days after the murder. The state stresses the significance of the fact that the check was never entered into the Ms. Kuehler’s checkbook. This evidence is circumstantial and does not necessarily implicate Barton in this crime. Further, at trial, the state admitted evidence of a hair found on Ms. Kuehler’s stomach. The hair was never identified but was found to be inconsistent with the hair sample taken from Barton. When taken together with the dubious physical evidence supposedly implicating Barton, evidence of the unidentified hair casts yet more doubt on the sufficiency of the physical evidence.
¶32Barton’s supposed changes in mood, statements made upon the discovery of the body and the disparities in the exact times given in his accounts to police officers hardly rise to the level of direct evidence discussed in Chaney. In fact, similar evidence was admitted to the Chaney trial court, including logical gaps in the defendant’s alibi and his distracted, sorrowful demeanor upon questioning by police officers. 967 S.W.2d at 50. This evidence was insufficient to convince the Court to uphold the application of the death penalty-
¶33Even if the evidence presented at trial had been substantially stronger, the procedural history of this case alone should give this Court pause in determining the appropriateness of a death sentence. Barton has gone to trial five separate times for the same offense. In the evidentiary hearing on Barton’s Rule 29.15 post-conviction motion, the trial court stated:
“I find clearly, clearly, that the Defendant has been prejudiced by having to come back over and over again because clearly the State’s case has been improved time after time because they find more snitches. They find two things I think most important. They find more snitches, and they get the benefit of technological advantages and DNA, none of which they had. The only time the jury got to hear a fair crack and then the jury was hung. So it is almost unarguably [sic] that the Defendant has been prejudiced. The defendant has been prejudiced.”
¶34Prosecutorial misconduct has plagued Barton’s trials from the outset, and, as the motion court observed in 2005, has allowed the state numerous opportunities to bolster its evidence. Whether the prosecutor’s conduct may or may not rise to the level of intentionality required to invoke the double jeopardy protection of Oregon *717v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), it should certainly factor into this Court’s consideration of the strength of the evidence in its proportionality review. At Barton’s first trial, a mistrial was declared as a result of the prosecution’s failure to endorse witnesses on the indictment as required by Rule 23.01(f). Barton’s second trial resulted in a hung jury, a clear indication that the evidence presented by the state was insufficient to convince all the triers of fact beyond a reasonable doubt.
¶35In the third and fourth trials, the state used the testimony of the “snitch” witness “Katherine Allen.” The post-conviction court determined that the prosecutor had failed to disclose “Allen’s” complete criminal history, a disclosure that would have allowed the defense “to conduct a far more effective cross-examination of ‘Ms. Allen.’ ” Following the fourth trial, the defense learned that the state had also failed to disclose that a deal had been made with “Allen” in exchange for her testimony against Barton. But even after the findings of the post-conviction court, during Barton’s fifth trial, the prosecutor still elicited inaccurate testimony from “Allen” concerning her criminal record.
¶36Beyond these clear-cut examples of prosecutorial misconduct, the simple fact is that the numerous reversals and errors in this case have allowed the state years and years in which to build its case. The protracted nature of this process undoubtedly compromised Barton’s ability to mount an effective defense. In voir dire for Barton’s fifth trial, four prospective jurors said that because the state has spent so much time prosecuting Barton, they found it difficult to believe he was innocent.
¶37Brenda Montiel, one of Barton’s alibi witnesses, is now dead, and only her prior testimony was available to him at the time of his fifth trial. Susan Strahan, a state’s witness, had died by the time of Barton’s fifth trial, and, so, a transcript of her testimony in a previous trial was read into the record. Defense counsel objected that the state had failed to disclose lineup photographs that were used in an interview with Ms. Strahan prior to her testimony. Because the state could not produce evidence that they had disclosed the lineup photographs to the defense, the court allowed in the testimony, provided all references to the lineup photographs were redacted. The defense had no way to cross-examine Ms. Strahan to determine whether her identification had been tainted by the undisclosed photo lineup, since the defense was not made aware of the earlier identification in time to cross-examine Ms. Stra-han in person.
¶38This kind of unfairness may not, in isolation, have prejudiced Barton. But taken in light of all of the other evidentiary inadequacies and misconduct by the state, there can be no question that Barton’s right to a fair trial has been jeopardized irreparably.
¶39Section 565.035 allows this Court the flexibility to determine whether a defendant genuinely merits the most severe sentence this state has the power to impose. The existence of the “strength of the evidence” clause of section 565.035.3(3) evidences a desire by the legislature for this Court to engage in a review of a defendant’s case, consisting not just of single points of law, but of the total impression of the justness and equity of imposing the death penalty. In Walter Barton’s case, as was the case in State v. Chaney, the absence of direct evidence and the numerous opportunities given the state to build its case render the application of the death penalty unjust.
¶40*7183. Does the prosecutorial misconduct in this case warrant Oregon v. Kennedy double jeopardy protection?
¶41Oregon v. Kennedy establishes that “where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial, [the defendant] may ... raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). This rule aims to prevent prosecutors from gaining more time to build a ease by provoking the defendant to seek a mistrial. As the majority in this case observes, the key inquiry in an Oregon analysis is whether or not the prosecutor intended to incite the defendant to request a mistrial. See Oregon, 456 U.S. at 675, 102 S.Ct. 2083 (“... a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply.”). The majority hinges its rejection of Barton’s double jeopardy argument on the intent question, arguing that “[t]he record simply does not support the conclusion that the prosecutor intended to prevent an acquittal, and for that reason, the Double Jeopardy Clause does not prevent retrial of the case.”
¶42While the majority may be correct that the state’s failure to fully disclose either “Katherine Allen’s” criminal record or the existence of a deal made in exchange for her testimony does not demonstrate intent to provoke a mistrial, the majority overlooks an additional relevant instance of prosecutorial misconduct. There are at least two points in the complicated procedural history of this case that require an examination of the appropriateness of applying Oregon v. Kennedy double jeopardy protection to Walter Barton.
¶43In Barton’s first trial in April of 1993, the prosecution failed to endorse any witnesses, even after the jury had been sworn. This failure prompted the defense to move for a mistrial. After the trial court granted the mistrial, defense counsel moved to discharge Walter Barton on double jeopardy grounds. The trial court ruled that the defendant’s request for a mistrial waived any double jeopardy claim. Defense counsel’s request for a mistrial, rather than a discharge, was brought up on appeal as an ineffective assistance of counsel claim after Barton’s conviction in the third trial. This Court did not rule on the ineffective assistance of counsel issue and instead reversed the conviction because of the trial court’s improper rulings on objections raised by the defendant to the prosecution’s final argument. 936 S.W.2d 781, 788 (Mo. banc 1996).
¶44Counsel for the defendant also raised the ineffective assistance/double jeopardy issue in the amended motion to vacate judgment and conviction submitted to the trial court for the Rule 29.15 post-conviction hearing. In its findings of fact and conclusions of law, the motion court found that “while no witnesses were endorsed by the State on the information, discovery had been conducted in the case and trial counsel was not surprised by the State’s evidence. The Court would have allowed the state under those circumstances to endorse witnesses and Movant is incorrect in concluding that his discharge was the only remedy.” The court denied the claim. The language of the court’s finding implicitly addresses the question of prejudice, asserting that because the first trial court would have allowed the state to endorse witnesses, Barton was not prejudiced by the state’s error. While prejudice is a prong of an ineffective assistance of counsel claim, it has no bearing on an Oregon v. Kennedy double jeopardy analysis.
¶45No court at any stage of the proceedings in this case has ever conducted an exami*719nation of the prosecutorial intent behind the state’s failure to endorse witnesses in the first trial. Indeed, in denying the defense’s request for discharge, the April 1993 trial court completely disregarded the protections afforded defendants by Oregon v. Kennedy. The trial court ruled that because Barton requested a mistrial, he could not receive protection of double jeopardy. This ruling not only fails to evaluate the intent underlying the state’s error, it undermines the principle at the very heart of Oregon v. Kennedy.
¶46Barton has preserved this claim for evaluation in a Rule 29.15 hearing by raising his request for double jeopardy protection first at the trial, then at the appeal from his conviction following the third trial, then in his amended motion submitted to the Rule 29.15 motion court and finally, in his brief before this Court. This Court now has the opportunity to remand this case for a finding as to the intent of the prosecutor consistent with Oregon v. Kennedy.
¶47To do so would not require an extension of Oregon v. Kennedy, but merely an application of its protections in their most conservative form. As the Rule 29.15 motion court observed in 2005, “... the Defendant has been prejudiced by having to come back over and over again because clearly the State’s case has been improved time after time because they find more snitches.” It is this very situation that the United States Supreme Court sought to prevent in Oregon v. Kennedy by applying the Double Jeopardy Clause to retrials following mistrials induced by prosecutorial misconduct. If Barton’s case does not merit a hearing on this issue, then the protections of Oregon v. Kennedy are hollow indeed.
¶48Conclusion
¶49In order to reach its result, the majority of the Court must not only overlook the protection of the Double Jeopardy Clause, but it also must imagine that the evidence is better than it is. The Court must imagine that “Katherine Allen” is telling the truth. The Court must also imagine that the prosecution did not attempt to suborn perjured testimony of the other jailhouse snitch, Larry Arnold, who recanted his previous trial testimony regarding Barton’s supposed admissions. The Court must imagine that a check made out to Barton and found miles away from Ms. Kuehler’s trailer days after the crime somehow constitutes evidence of motive or an admission of guilt or an attempt to conceal evidence. The Court must imagine that witness testimony placing Barton in Ms. Kuehler’s trailer for a brief period of time at some point on the day of the murder is sufficient to implicate Barton as the murderer. The Court must imagine that after repeatedly and violently stabbing Barton, Barton walked away from the crime with two small bloodstains on his shirt and little or no blood on his boots. The Court must imagine that this blood evidence means something more than it does.
¶50I can imagine why the Court would affirm the conviction of Walter Barton. After all, at least 36 of the 48 jurors who have heard the evidence — tainted though it may be — have voted to convict. If this were not a criminal trial, that would be a landslide.
¶51I cannot imagine, however, why the Court would approve the death sentence on this sorry record.
¶52I respectfully dissent.
¶53. All references are to RSMo 2000.
¶54. All references are to RSMo 2000.