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ERICKSON v. SCHOMIG

September 28, 2001

UNITED STATES EX REL. PAUL S. ERICKSON, N33213, PETITIONER,
v.
JAMES M. SCHOMIG, WARDEN OF THE PONTIAC CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Blanche M. Manning, U.S. Judge

      MEMORANDUM OPINION AND ORDER

Defendant Paul Erickson was convicted in the circuit court of Cook County by a jury of murder and concealing a homicidal death in connection with the rape and death of fifteen year-old Elizabeth Launer. At sentencing, Erickson waived a jury and the court sentenced him to death for murder, an extended term of 60 years for rape, and a consecutive term of 10 years for concealment of a homicidal death. Erickson filed a direct appeal and two state post-conviction petitions and pursued these cases unsuccessfully up to the United States Supreme Court.

Erickson now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising ten grounds for relief. He also seeks discovery pursuant to Rule 6 of the Rules Governing Habeas Corpus Cases Under § 2254 and a stay of this petition while he pursues that discovery. For the following reasons, the court denies Erickson's motions for discovery and a stay, and finds that Erickson's waiver of a sentencing jury did not violate his constitutional rights but that he nevertheless received ineffective assistance of counsel at sentencing and is entitled to relief under § 2254.

I. Jurisdiction

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L 104-132, 100 Stat. 1214 (the "AEDPA"), apply to Erickson as he filed his petition after the AEDPA's effective date. This is Erickson's first petition and he filed it within a year after the conclusion of proceedings relating to his second state petition for post conviction relief. See See 28 U.S.C. § § 2244(d)(2), 2254(b) & (d). Therefore, the court has jurisdiction to consider Erickson's petition.

II. Background

On August 4, 1982, the body of Elizabeth Launer was found in a retention pond in Rolling Meadows, Illinois. Launer had been stabbed in the neck, the chest, and the abdomen. Erickson was charged with a total often counts stemming from Launer's murder and rape and prior acts of violence.*fn1 Before trial, Erickson attempted to waive his right to have a jury to consider the imposition of the death penalty if he was convicted of murder. The court, however, refused his waiver and Erickson proceeded to trial before a jury.

As discussed below, although Erickson denies that he murdered Launer, he has not presented clear and convincing evidence rebutting the statutory presumption of correctness. See 28 U.S.C. § 2254 (1). Accordingly, the court presumes that the state court's factual determinations are correct. See id.; see also Sumner v. Mata, 449 U.S. 539, 547 (1981); Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999), cert. denied sub nom. Sanchez v. Schomig, 529 U.S. 1089 (2000). Thus, the court adopts the following factual background from the record and the opinions of the Illinois Supreme Court in People v. Erickson, 117 Ill.2d 271 (Ill. 1987) (state direct appeal) ("Erickson I"), cert. denied, 486 U.S. 1017 (1988), rehearing denied, 487 U.S. 1283 (1988), People v. Erickson, 161 Ill.2d 82 (Ill. 1994) (first state post-conviction appeal) ("Erickson II"), cert denied, 514 U.S. 1107 (1995), and People v. Erickson, 183 Ill.2d 213 (Ill. 1998) (second state post-conviction appeal) ("Erickson III").

Testimony proffered by the State established that, on the evening of July 30, 1982, Erickson (who was twenty-four years old), at the request of a former girlfriend, Lisa Soderberg, bought alcoholic beverages and rented a motel room at the Rolling Meadows Holiday Inn for a group of five juveniles: Soderberg, Thomas Fairweather, Michael Blanchard, Renee East and the victim, Elizabeth Launer. Soderberg was sixteen years old, Fairweather, Blanchard, and Launer were fifteen years old, and East was thirteen years old. Later in the evening, East left the motel, leaving Erickson in the room with Soderberg, Fairweather, Blanchard, and Launer.

A. Fairweather's Testimony

Fairweather testified for the State as follows. At approximately 11:30 p.m., Erickson approached him, walked with him outside, and asked whether or not he could keep his "mouth shut" regardless of "how bad a crime [he] was to witness." (R. 1325). Fairweather said he could, and asked Erickson what he had in mind. Erickson told him that he intended to have sex with Launer because "he went out with her the night before and all she did was prick tease him." (R. 1326). According to Fairweather, Erickson said that he would rape Launer if she did not cooperate.

Fairweather expressed concern about the possibility that Launer would report the rape to the police. In response, Erickson told him that, after the rape she would "never go home again." (R. 1326). When Fairweather again expressed concern regarding the police, Erickson stated that they would not be caught and said that he would be the one to kill Launer. (R. 1327).

Erickson then pulled a knife from underneath the driver's seat of his car. He also showed Fairweather two neckties and a rolled up sock. He and Fairweather returned to the hotel room and then called Blanchard and Fairweather into the hall to talk, , According to Fairweather, Erickson suggested the following plan. First, to get rid of Soderberg, Erickson suggested that Fairweather provoke an argument with her so that she would get angry and leave. Erickson also gave the two ties to Blanchard and the sock to Fairweather. Because Erickson did not want to rape Launer at the motel, he told Fairweather and Blanchard that the group would leave the motel in his car.

Fairweather testified that Erickson instructed Blanchard to sit in the front seat on the passenger's side next to Launer (who would thus be seated between Blanchard and Erickson). Erickson also told Fairweather to sit in the back seat on the passenger's side. When Erickson gave the signal, Fairweather was to reach over the seat and stuff the sock into Launer's mouth. Fairweather and Blanchard would then grab Launer, tie her hands with one necktie, and place the other necktie over her mouth. According to Fairweather, Erickson said they would then "take her clothes off, rape her, kill her and get rid of the body."

Consistent with the instructions provided by Erickson, Fairweather started an argument with Soderberg, which caused her to leave. The group (Erickson, Blanchard, Fairweather and Launer) left the motel in Erickson's car at approximately 3:00 am. positioned according to his instructions. Erickson drove to the Carriage Way apartment complex in Rolling Meadows and parked in a secluded grassy area between some tennis courts and an open field.

Saying that he did not want to have anything to do with what was occurring in the car, Blanchard asked Fairweather for cigarettes and left the vehicle. Blanchard walked approximately twenty-five yards away from the car and sat on the grass with his back to the car. Inside the car, Erickson removed Launer's clothing and laid her across the front seat. Fairweather, who was still in the back seat, saw Erickson position himself on his knees between Launer's legs and heard a zipper being unzipped. Launer told Erickson that she would "pay him back" and "come back to haunt him." (R. 1350). Fairweather then heard Launer cry and moan. Erickson slapped Launer and said, "open up, bitch."

According to Fairweather, Erickson lowered himself on top of Launer. A short while later, Fairweather heard a zip and snap and Erickson left the car. Fairweather got into the front seat and tried to free Launer, who was nude and bound by the neckties. Launer begged Fairweather not to hurt her, and Fairweather told her, "I am going to try to get you out of here. I am going to help you. This guy is crazy." (R. 1353). As Fairweather began to loosen one of the neckties, Erickson returned and got into the back seat. Although Fairweather denied having any sexual contact with Launer, he testified that he "pretended" to have sexual intercourse with her. Subsequently, Erickson got out of the car, opened the front door, and pulled Launer out. Fairweather picked up her clothes, and Erickson pulled Launer to the nearby retention pond while Fairweather walked alongside them.

Erickson forced Launer to the ground on her back. Launer began to plead for mercy, begging Erickson not to hurt her or kill her. (R. 1362). In response, Erickson told her "Sorry. It's got to end like this because you had to be such a prick tease." (R. 1363). Fairweather held her head, Erickson pulled out the knife and raised the knife over Launer. As Launer screamed, Erickson stabbed her in the chest. Fairweather released Launer's head and got up. While he was walking away, he "heard the knife go into her body again." (R. 1365). On cross-examination, Fairweather testified that his hands were bloody but that Erickson's were not (R. 1450-51). He also claimed that blood had gotten onto his hands and pants when he picked up Launer's body to throw her into the water. (R. 1452).

Erickson called out to Fairweather, who walked back towards the body. Fairweather and Erickson threw Launer's body and her clothing into the pond, returned to the car, and left the scene along with Blanchard. The trio then went to the home of Erickson's girlfriend, Mickey Jaksch. They woke her up and, according to Fairweather, Erickson told her that he had raped and killed a girl.*fn2

On cross-examination, Fairweather acknowledged that he also had been charged (as a juvenile) with murder, rape, concealment of a homicidal death, unlawful restraint, and aimed violence. The State, however, offered him a sentence of approximately four years, with the possibility of a reduction for good time served, if he pleaded guilty to one charge and testified.

B. Blanchard's Testimony

Blanchard also testified for the State. He stated that Erickson initiated a conversation with him and Fairweather wherein Erickson told them that he wanted to have sex with Launer. Erickson "talked about raping Launer and killing her if she resisted." Erickson subsequently approached Blanchard and Fairweather, gave Fairweather a sock, and told him to reach over the seat and put the sock into Launer' s mouth to gag her. Erickson also gave Blanchard two or three neckties so Blanchard could bind Launer. Blanchard kept one and returned the others.

Blanchard testified that he, Erickson, Fairweather, and Launer left the motel and drove to an apartment complex. Erickson drove, Blanchard sat on the passenger side of the front seat, Launer sat on the front seat between Erickson and Blanchard, and Fairweather sat in the back. Erickson parked towards the back of the complex, next to some tennis courts and a grassy field. Blanchard saw Erickson look into the back seat and nod his head. Fairweather reached over the front seat and unsuccessfully tried to place the sock into Launer's mouth.

Blanchard then said that he saw Erickson and Launer struggle, but did not see Erickson bind or gag her. Blanchard got out of the car and walked about twenty yards away. He testified that he heard crying and moaning sounds coming from the car. A short while later, he saw Erickson pull Launer out of the car. Erickson, Fairweather, and Launer walked into a wooded area and Blanchard lost sight of them. He did, however, hear moaning and sobbing, followed by a scream. A few minutes later, he heard a splash. Erickson and Fairweather then returned to the car and the three men drove to the home of Jaksch, Erickson's girlfriend.

While they were en route to Jaksch's home, Blanchard stated that Erickson admitted that he had stabbed Launer. He also stated that, after they arrived at the house, Erickson told Jaksch "that he just killed somebody: "her name was Liz.'" On cross-examination, Blanchard testified that he had been charged in a juvenile petition with concealment of a homicidal death. He also acknowledged that, in return for his testimony, he expected the State to drop the charge.

C. Erickson's Testimony

Erickson took the stand as the sole witness in his defense. His testimony materially differed from that of Fairweather and Blanchard, particularly as to who decided to rape and kill Launer and who actually killed her. Specifically, Erickson testified that Fairweather said he wanted to have sex with Launer, that he would rape her if he had to, and that "[Launer] would never go home again." Erickson also stated that Fairweather supplied the sock and neckties, although he admitted that the tie used to bind Launer's hands belonged to his father.*fn3

Launer was told to lie down on the ground. After she did so, Erickson knelt down and held her feet and Fairweather stabbed Launer in the chest with a knife (which Erickson admitted that he owned). He and Fairweather threw Launer's body and the clothes into the pond and left. Erickson acknowledged that the group then drove to Jaksch's house However, he stated that he told Jaksch only that "he was involved in the killing of a girl." On August 6, 1982, the Naperville Police arrested Erickson and charged him with the rape and murder of Elizabeth Launer. The complaint was superseded by an indictment alleging murder, rape, unlawful restraint, concealment of a homicidal death, and armed violence. After a trial, a jury found Erickson guilty on all counts.

D. Sentencing

As noted above, prior to trial, Erickson had unsuccessfully attempted to waive his right to have a jury consider the imposition of the death penalty if he was convicted of murder. After the jury returned its verdict, Erickson again tendered a waiver of a sentencing jury. This time the court accepted the waiver and commenced a sentencing hearing pursuant to Ill. Rev. Stat. ch. 38, ¶ 9-1(d)(3) (1981).

The State presented additional evidence in aggravation during the sentencing hearing. First, it presented the testimony of Billy Johnson, who recounted an incident which occurred approximately two weeks before Launer's death. Johnson testified that Erickson suggested that they go to O'Hare International Airport to pick up a prostitute. They traveled to O'Hare where, according to Johnson, Erickson told him they would have to "get rid" of (i.e., kill) the prostitute after they had sexual relations with her.

Second, the State presented the testimony of Leslie Blackstock, who said Erickson had raped her in 1979. Third, Marge Rader testified that Erickson had tried to rape her in March of 1979 and that he had later slashed all the tires on her car. One week after that, Erickson approached her with a knife and told her that he should have slashed her instead of the tires. Fourth, Therese Moran testified that Erickson had convinced her to go into a women's bathroom where Erickson had intercourse with her. (R. 2232-33). Erickson impregnated Moran and told her not to tell anyone they were having a sexual relationship.

Fifth, the State offered the testimony of Rolling Meadows Police Detective Greenway. Greenway testified he had recently spoken with one of Erickson's former girlfriends, Joanne Combs. Over the defense's objection, Greenway testified that Combs told him that Erickson slapped her around, impregnated her, and threatened to kill her if she told anyone that he was the father. Greenway also testified that Combs related to him that Erickson had admitted to her that he had once stabbed a black man to death.

Finally, Harold Matthews testified that he had been arrested and incarcerated for failing to pay for a stay at the Rolling Meadows Holiday Inn. Matthews and Erickson met at the Cook County Jail. According to Matthews, Erickson told him that the Holiday Inn that was the source of Matthews' troubles was the place where he had a party and stabbed a girl. Erickson also told him that "it was a big thrill" and described the killing in "a graphic, vivid manner." (R. 2285, 2299).

Erickson then presented two mitigating factors: (1) "no significant history of prior criminal activity"; and (2) the presence of an "extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution." See Ill. Rev. Stat. ch. 38, ¶¶ 9-1(c)(1) & (2) (1981). In support of the second mitigating factor, Erickson offered the testimony and report of John Weliczko, an individual who claimed to be a psychotherapist and who had been retained by Erickson's parents. Weliczko was the only witness to testify on behalf of Erickson during the sentencing proceedings. The defense intended Weliczko to opine, as a mental health expert, that a psychological condition explained Erickson's behavior. See Ill. Rev. Stat. Ch. 38 ¶ 9-1(c)(2) (1981).

In his written "psychological evaluation," Weliczko described Erickson as manipulative and narcissistic with a "grandiose sense of self-importance," "feelings of entitlement," "lack of empathy for the pain of others," and a preoccupation with sexual fantasies of women. (R. 2673). He also questioned whether Erickson both despised and adored Launer. (R. 2674). In addition, he stated that Erickson's parents "cannot be blamed for his disorder. The real causes are society, peers and the judicial system who allowed his self-deception to escalate to a point of self destruction." (R. 2675) (emphasis in original). Finally, he concluded that the actions of Erickson and his accomplices:

must be viewed as a group portrayal of a narcissistically preoccupied teenage band of reckless, unempathetic and psychologically unstable group of young men and women. [Erickson] cannot be the only guilty part. The blood of the victim will never be psychologically excised from the stained group who partied at the Holiday Inn, and those who assisted in the concealment of evidence.

(R. 2675) (emphasis in original).

At the sentencing hearing, Weliczko claimed that, among other degrees, he held a masters degree in psychology from Harvard University and a doctorate in psychology from the University of Chicago. However, during cross examination, he admitted that he had received a masters in theology from the Harvard Divinity School and that his doctorate was a ministry degree in pastoral counseling and psychology from the Chicago Theological Seminary, an entity associated with the University of Chicago. Weliczko asserted that he nevertheless practiced psychology and thus was a mental health care provider. However, he also admitted that he did not have any degrees in psychology or any medical training and that he had previously only testified as a pastoral counselor. (R. 2365).

The trial judge refused to qualify Weliczko as an expert, but did permit him to offer lay testimony. He also denied Erickson's motion for a continuance to secure the testimony of a qualified mental health expert, ruling that such additional testimony would be cumulative to Weliczko's testimony, which the court would be considering.

In rebuttal, the State called Dr. Gilbert Bogen, a staff psychologist with the Psychiatric Institute of the Circuit Court of Cook County. Dr. Bogen opined that Erickson was legally sane at the time of the offense, appreciated the criminality of his actions, and was able to conform his conduct to the requirements of the law. (R. 2430, 2578). He also opined that Erickson had an antisocial personality disorder (which he defined as being manipulative with a lack of empathy for others) with some features of narcissism.

At the close of the aggravation phase of sentencing, Erickson's trial counsel requested a continuance because Erickson had a doctor's appointment related to a knee injury. Counsel advised the court that Erickson was taking medication for his knee problem which was "giving him slight feelings of detachment from reality." (R. 23 02-03). The court denied Erickson's motion.

After reviewing all of the evidence in aggravation and mitigation, the trial judge found beyond a reasonable doubt the existence of one statutory aggravating factor: that Launer had been killed in the course of a felony (rape) and that Erickson had actually killed her. See Ill. Rev. Stat. ch. 38, ¶ 9-1(b)(6) (1981). The court also found that no mitigating factors precluded the imposition of the death penalty and stated that, if it could consider the feelings of Erickson's parent, its judgment would be different. The court then sentenced Erickson to death. The lllinois Supreme Court affirmed, Erickson I, and the United States Supreme Court declined to issue a writ of certiorari, 486 U.S. 1017, 108 S.Ct 1754 (1988).

E. Erickson's First State Post-Conviction Petition

Erickson then sought relief under the Illinois Post Conviction Hearing Act, Ill. Rev. Stat. ch. 38 ¶ 122-1, et seq. (1981). The case was assigned to Judge Toomin, who had presided over Erickson's trial, but was subsequently transferred to Judge Richard Neville. The circuit court dismissed Erickson's petition in its entirety and the Illinois Supreme Court affirmed the denial of all relief. See Erickson II. Erickson's claims primarily related to Weliczko's credentials (or, more accurately, the lack thereof. Erickson began by asserting that Weliczko's testimony prevented him from receiving a fair sentencing hearing, pointing to a transcript from the Chicago Theological Seminary and an affidavit from an official at Gordon College in Wenham, Massachusetts, showing that Weliczko had earned a degree in philosophy there. Noting that the fact that Weliczko was not a psychologist was clear from the trial record, the Illinois Supreme Court concluded that the claim based on Weliczko's fake credentials was procedurally defaulted because it could have been raised on direct appeal.

Erickson also claimed that his counsel was ineffective for two reasons. First, he challenged counsel's failure to verify Weliczko's credentials and his decision to put Weliczko on the stand, asserting that Weliczko's testimony undermined the defense strategy. The illinois Supreme Court found that these claims were procedurally defaulted because, like the other claims based on Weliczko's ersatz credentials, they could have been raised on direct appeal since "any inadequacy there may have been with counsel's representation with respect to Weliczko was evident when Weliczko was cross-examined." Erickson II, 161 Ill.2d at 89.

Second, Erickson contended that trial counsel failed to investigate and obtain mitigating evidence, including a competent psychological profile. Erickson asserted that he, in fact, had a history of alcoholism and drug addiction and had endured a childhood of psychological, emotional and sexual abuse. In support, he offered reports from two psychologists — Dr. Michael Gelbort (Erickson Ex. 6) and Dr. Brad Fisher (Erickson Ex. 7) — who would have testified to this effect. Dr. Fisher's report also contained a review of Weliczko's report. In short, Dr. Fisher noted that Weliczko was not a qualified medical professional and concluded that Weliczko's report did not contain the information found in a competent psychological evaluation or substantiation for Weliczko's conclusions.

Both Dr. Gelbort and Dr. Fisher administered a battery of psychological tests and interviewed Erickson thoroughly. Their reports show that Erickson suffered a number of head traumas which resulted in an alteration of consciousness. He was dropped on his face as a baby and as a teenager had blurred vision, spells of unconsciousness, and concussions from at least eight separate falls. He also had headaches, vomiting, and nerve injuries related to the head trauma

Erickson's mother was schizophrenic and he was sexually abused by a priest as a child. In response, he began to abuse drugs and alcohol at an early age. He also turned to psychotropic drugs known to alter brain functioning and to cause brain damage. When he was thirteen years old, he was admitted to the emergency room due to severe alcohol intoxication and he also unsuccessfully attempted to commit suicide by taking a drug overdose.

Neurophysical tests showed that Erickson had brain damage in the dominant cerebral hemisphere which caused him to have difficulty understanding what was expected of him, processing information, dealing with quickly evolving situations, and learning from his own or other's behavior and mistakes. In addition, Erickson's drug and alcohol use at the time of Launer's death augmented the behavioral problems caused by Erickson's brain damage and further diminished his ability to control his actions and make reasoned judgments.

Erickson also submitted affidavits from two former teachers, both of whom said that Erickson had been a well-adjusted student and that they were shocked to hear that he was involved in Launer's death. The Illinois Supreme Court found that, in light of the record as a whole, testimony from the psychologists and Erickson's former teachers would not have altered the outcome.

In addition, Erickson asserted that he was entitled to an evidentiary hearing to further investigate the effect of the denial of his motion for a continuance to obtain a psychological evaluation. The Illinois Supreme Court held that this issue had been previously raised on direct appeal and thus could not be relitigated in collateral proceedings.

Erickson also claimed that he was entitled to relief because he waived a jury for the sentencing phase without knowing that if even one juror disagreed, he could not receive the death penalty. Erickson had answered affirmatively when the trial judge asked if he understood that, like a finding of guilt, death had to be the jury's unanimous choice, meaning that all twelve jurors had to agree. He unsuccessfully challenged the sufficiency of this admonishment on direct appeal. Nevertheless, during his post-conviction proceedings, he submitted an affidavit saying that he did not truly understand the unanimity requirement. The Illinois Supreme Court rejected this argument, noting that Erickson could not prevail in light of the sufficient admonishment and his own acknowledgment, at the time, that he understood it.

In addition, Erickson asserted that he testified only because his counsel asked him whether he would like to go to jail for many years without telling his story. The Illinois Supreme Court noted that Erickson was aware of his right not to testify and that, in fact, his testimony was the only evidence offered to counter the State's case. Finally, Erickson unsuccessfully challenged the constitutionality of Illinois' death penalty.

Although the Illinois Supreme Court affirmed the dismissal of Erickson's petition, see Erickson II, Justice McMorrow (joined by Justice Harrison) filed a dissenting opinion stating that she believed Erickson had not waived his claims based on Weliczko's credentials and that he was entitled to an evidentiary hearing on this issue. Id. 161 Ill.2d at 96-119. The United States Supreme Court subsequently denied certiorari. 514 U.S. 1107 (1995).

F. Erickson's Second State Post-Conviction Petition

A defendant's failure to raise a claim of ineffective assistance of appellate counsel in a state post-conviction does not operate as a waiver of this issue if the same attorney represented the defendant on direct appeal and in his initial state post-conviction petition. Erickson III, 183 Ill.2d at 223. Erickson's second state post-conviction petition thus contained ineffective assistance claims directed at his original appellate attorney, who had represented him on direct appeal and in his initial state post-conviction petition.

In the second state post-conviction petition, Erickson first claimed that counsel's representation during sentencing was deficient because counsel relied on Weliczko and failed to uncover and present additional mitigating evidence. In support, Erickson submitted an affidavit from another mental health professional as well as affidavits from family members who said that they would have testified had they been asked to do so. The Illinois Supreme Court found that the claim was barred by res judicata because it was raised in the first state post-conviction proceeding, where Erickson had an opportunity to develop the record.

Erickson also asserted that his counsel was ineffective because he failed to raise issues relating to Weliczko on direct appeal and thereby caused him to waive these claims. The Illinois Supreme Court found that, while Weliczko's characterization of Erickson may not have helped him, it did not contribute to the trial court's sentencing decision. In support, the Illinois Supreme Court noted that the aggravating factors listed by the trial judge did not include Weliczko's testimony but, instead, emphasized the heinous nature of the crime and Erickson's prior history of sexually attacking women.

The Illinois Supreme Court acknowledged that the trial judge referred to Weliczko's testimony when it summarized the mitigating evidence. It found, however, that the trial judge did not consider this testimony to be aggravating and that, regardless of Weliczko's opinion, the circumstances of the crime and the aggravation evidence presented by the State (portraying Erickson as calculating, aggressive and violent) made it "unlikely" that the trial court's conclusion would have been different if Weliczko had not testified. Erickson III, 183 Ill.2d at 229. It thus concluded that counsel's use of Weliczko did not prejudice Erickson.

Erickson also claimed that the cumulative effect of counsel's errors — i.e., counsel's failure to introduce additional mitigating evidence regarding Erickson's mental condition and counsel's failure to contend that Erickson was not eligible for the death penalty — was prejudicial. The Illinois Supreme Court disagreed, stating that the proffered additional evidence — an affidavit from Erickson's brother stating that he thought that Fairweather killed Launer and affidavits from Erickson's former teachers — would not have changed things. The Illinois Supreme Court also rejected Erickson's claim that his counsel's failure to contest death-eligibility constituted ineffective assistance.

Next, Erickson again challenged Weliczko's testimony, this time by claiming that the trial court's reliance on that testimony and the accompanying written report deprived him of the right to be sentenced based on fair and reliable evidence. The Illinois Supreme Court disagreed, stating that the trial court was "well aware of Weliczko's shortcomings as a witness." Erickson III, 183 Ill.2d at 232-33. It also noted that the trial court considered Weliczko to be a lay witness only and did not attach significant weight to his testimony. Finally, it observed that the negative aspects of Weliczko's testimony — that Erickson was "manipulative, ...


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