Whether new mitigating evidence of a capital defendant's horrific childhood abuse and PTSD diagnosis can be considered cumulative and inconsequential under Strickland

QUESTIONS PRESENTED — CAPITAL CASE From the time James Lee was in diapers, his drug-addled mother routinely assaulted him; on one occasion, for instance, when he was about four, she struck him so hard he flew into the air and crashed on the floor bleeding. As a young boy, he was so deprived of human interaction he learned how to behave from the dog living under the porch and would bark, scratch his ears, and chase after cars — behavior witnesses characterized as bizarre, not child’s play. And he was so starved for food he had to beg from his neighbors, who described Lee as a filthy child with rotting teeth, a head full of lice, and tattered clothes. These and other horrifying details of Lee’s “dystopic existence”! were readily available, had trial counsel conducted a reasonably competent investigation. Yet Lee’s jury had heard none of it when they sentenced him to death for a crime he committed as a teenager. Instead, Lee’s attorneys presented evidence showing that Lee, like millions of people who have not committed murder, has ADHD; was abandoned by his father as a young boy; and was raised in poverty by a single mother, who admitted to having a problem with prescription drugs, but testified she did her best. The only trial evidence that Lee suffered any abuse or neglect came from the defense mental health expert, who stated, merely: [S]tarting very early in his life, there was deprivation at times, where there wasn’t even adequate food in the home, the abandonment by his father, that his father left. There was a lot of abuse, frequent changing and inconsistent rules or caregivers. You know, he and his mother lived together for a while, and she had a problem with substance abuse and was inconsistent in her behavior. A lot of times, he was left alone. Then, you know, they stayed with his grandparents, and there was some physical abuse as well as neglect. ' Hon. Britt Grant, describing Lee’s post-conviction evidence during oral argument. See https://www.cal | (last visited Sept. 16, 2021), at 35:17-20. ii His account was so inconsequential that neither side even mentioned it in closing. In stark contrast, in state habeas proceedings, Lee presented evidence detailing shocking, chronic neglect, and brutal assaults he suffered at the hands of his mother (and others) throughout his childhood. The state habeas court granted sentencing relief, finding Lee was prejudiced by counsel’s deficient failure to investigate and present evidence of Lee’s deplorable childhood and expert testimony regarding the PTSD he developed as a result. The Georgia Supreme Court reversed, concluding Lee was not prejudiced because the new evidence did not demonstrate that Lee’s childhood “was so harmful or horrific,” given what the jury did hear, and that Lee did not establish a nexus between the new mental health diagnosis and the murder. In federal habeas proceedings, the Eleventh Circuit recognized that the new evidence provided “graphic and horrifying descriptions of the physical and emotional abuse and neglect Lee endured at his mother’s hands — details showing a frequency and severity of abuse that was only hinted at during Lee’s trial presentation.” Nonetheless, it ruled that the Georgia Supreme Court had reasonably found no prejudice because the new habeas evidence ‘“‘added to [the] somewhat basic picture” presented at trial and the state court purportedly “conducted [the] exercise” of reweighing all the available mitigation against the evidence in aggravation. The questions presented are: 1. Where a capital sentencing jury hears only a brief, conclusory, second-hand allusion to childhood abuse and neglect, can detailed, graphic accounts of a capital defendant’s horrifying upbringing, “filled with abuse and privation,” and a new expert diagnosis of PTSD based on that evidence, reasonably be considered cumulative of the trial evidence and, if so, is the new evidence properly deemed inconsequential in assessing prejudice under Strickland v. Washing