Whether a reviewing court should consider the cumulative effect of multiple errors by trial counsel in assessing Strickland deficiency and prejudice

QUESTIONS PRESENTED In this Missouri capital habeas case, Scott McLaughlin’s trial counsel failed to investigate the background and credibility of Dr. Keith Caruso who was retained and designated as the key defense witness at the penalty phase of trial. After Dr. Caruso disclosed to trial counsel on the eve of the penalty phase, he had been disciplined for altering laboratory data, trial counsel elected not to call him at the penalty phase, despite promising to do so in his penalty phase opening statement. As a result, the sentencing jury, who ultimately could not unanimously agree on punishment, heard no evidence from a qualified psychiatrist that petitioner’s mental illness would have supported two statutory mitigating factors. In the courts below, petitioner raised a defaulted ineffective assistance of counsel claim he labeled as the “Dr. Caruso fiasco.” After holding an evidentiary hearing on the issue of cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), the District Court granted penalty phase relief on this claim. The Eighth Circuit reversed the District Court’s judgment and reinstated petitioner’s death sentence, finding the District Court erred in finding that petitioner’s trial counsel’s performance was objectively deficient, and that prejudice ensued. In reaching this conclusion, the Court of Appeals found that the District Court could not consider the “broken promise” by counsel during opening statement in assessing whether counsel was ineffective. On the issue of prejudice, the Eighth Circuit found that petitioner could not of establish that counsel’s failure to investigate created a “substantial likelihood of a different result.” Based on the foregoing facts, this case presents these questions: 1. Whether a reviewing court, in assessing trial counsel’s overall performance and prejudice under Strickland v. Washington, 466 U.S. 668 (1984), should consider the cumulative effect of multiple errors of counsel in determining whether a Sixth Amendment violation occurred. 2. Whether a reviewing court’s determination that a prisoner must show a substantial likelihood of a different result imposes a preponderance of the evidence test for prejudice that was explicitly rejected in Strickland. 3. Whether the Court of Appeals’ finding that counsel in this case performed effectively, despite failing to investigate the background and credentials of an expert witness beyond the review of his CV, conflicts with this Court’s decision in Wiggins v. Smith, 539 U.S. 510 (2003) and decisions from other circuits. 4. Whether the Court of Appeals’ review of a distinct ineffectiveness claim [under 28 U.S.C. § 2254(d)] in assessing prejudice from the Dr. Caruso fiasco conflicts with this statute and decisions from this Court. PROCEEDINGS DIRECTLY RELATED TO THIS CASE McLaughlin v. Precythe, 9 F.4th 819 (8th Cir. 2021). Case No. 18-3510. Judgment entered August 18, 2021. McLaughlin v. Steele, 173 F.Supp.3d 855 (E.D. Mo. 2016). Case No. 4:12-ev-1464. Judgment entered March 22, 2016. McLaughlin v. State, 265 S.W.3d 257 (Mo. banc 2008). Case No. SC88181. Judgment entered August 26, 2008. McLaughlin v. Missouri, 556 U.S. 1165 (2009). Case No. 08-822. Judgement entered April 6, 2009. McLaughlin v. State, 378 S.W.3d 328 (Mo. banc 2012). Case No. SC91255. Judgment entered July 3, 2012. State v. McLaughlin, Case No. SC08-sl-cc05311 (St. Louis County), Judgment entered August 27, 2010 ii