Whether the Tenth Circuit contravened Strickland v. Washington by not considering the totality of the mitigating evidence in its prejudice review

QUESTIONS PRESENTED (CAPITAL CASE) The jury that sentenced Mr. Frederick to death did not hear from a single live defense witness during the penalty phase of his capital trial. Despite ample evidence indicating Mr. Frederick suffers from brain damage, defense counsel failed to investigate and present such evidence that could have humanized Mr. Frederick and explained the neurological underpinnings of his behavior. Yet the Tenth Circuit, in a split opinion, held that counsel’s performance did not prejudice Mr. Frederick. The Majority Opinion reasoned that had defense counsel presented evidence of Mr. Frederick’s brain damage during the penalty stage, it would have opened the door to introduction of Mr. Frederick’s antisocial personality diagnosis (ASPD)—a diagnosis the court viewed as nothing other than aggravating. Rather than evaluate the totality of all the available mitigation evidence in reweighing it against the evidence in aggravation, the Majority concluded there can be no prejudice where the unpresented evidence could include potentially aggravating evidence. Following this outcome, the following questions warrant this Court’s review: 1. This case presents a similar question to Thornell v. Jones, Supreme Court Case No. 22-982 (cert. granted, Dec. 13, 2023): Whether the Tenth Circuit contravened Strickland v. Washington, 466 U.S. 668 (1984) by not considering the totality of the mitigating evidence in its prejudice review? 2. Whether the possibility of an ASPD diagnosis categorically forecloses a life verdict? i STATEMENT OF