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A Wyoming man who kidnapped, raped and murdered a woman in 1988 and was convicted of the crimes more than a decade later could still be subject to the death penalty, according to a ruling from a federal appeals court in Denver.

Dale Wayne Eaton, 74, was Wyoming’s only death row inmate from his 2004 jury conviction on four felonies until 2014, when a federal judge in Cheyenne overturned the jury’s sentence of death. Judge Alan Johnson ruled that Eaton’s court-appointed defense lawyers had performed deficiently at sentencing and vacated his conviction but gave prosecutors the opportunity to again seek to sentence him to death.

In Eaton’s latest appeal, he had asked the Denver appeals court to deny prosecutors that option, but, in its July 23 opinion, the 10th U.S. Circuit Court of Appeals declined to do so.

Federal judge stays state death prosecution of Dale Eaton

Former Natrona County District Attorney Mike Blonigen, who tried Eaton in 2004, said Tuesday evening he was not largely surprised by any portion of the opinion. He said he expects any appeal to the U.S. Supreme Court before resentencing would likely not be heard. The trial prosecutor declined to say whether he would like to handle the sentencing hearing, saying that was a decision entirely up to Dan Itzen, who replaced him as district attorney in January. Itzen could not be reached by phone the evening of the decision.

Attorney General Bridget Hill, whose office handled the 10th Circuit appeal, typically does not comment on ongoing cases. She declined by email Tuesday to diverge from that policy.

Sean O’Brien, the Kansas City lawyer and law professor who led Eaton’s appeal, did not immediately respond to a late afternoon call for comment.

Wyoming death row inmate Eaton challenges conviction

The case began more than 30 years ago, when authorities began investigating Lisa Marie Kimmell’s death. The Billings, Montana, woman’s body turned up in the North Platte River, but investigators hit a decade of dead ends.

In 1998, after Eaton was convicted of assault and sent to Wyoming State Penitentiary, authorities took his DNA and found it matched evidence found on Kimmell’s body. Investigators, however, did not immediately make the finding public. In 2002, authorities unearthed Kimmell’s car on Eaton’s property in Moneta, about an hour from Casper.

In 2003, the Natrona County District Attorney’s Office charged Eaton with Kimmell’s death, and Blonigen took the case to trial in early 2004. After two weeks in the courtroom, jurors convicted him of every charge he faced — first-degree premeditated murder, felony murder, aggravated kidnapping, aggravated robbery and first-degree sexual assault — and Eaton’s case went to sentencing. Days later, the jury found Eaton should be put to death.

The Wyoming State Public Defender’s Office appealed the case in 2005, beginning a series of post-conviction proceedings that have not yet been resolved.

Wyoming death row inmate's attorneys allege more errors in sentencing

Judges halted execution dates set for 2008 and for 2010, when Eaton appealed to the federal system. In 2014, Johnson, the Cheyenne judge, vacated Eaton’s sentence and gave prosecutors a 120-day deadline to seek a new sentencing hearing. Eaton asked Johnson to order the state court to sentence him to life without parole, but the judge declined to do so.

Eaton appealed to the 10th Circuit and the 120-day time frame expired. The federal district court ruled prosecutors, however, could still pursue a hearing to impose the death penalty. Eaton appealed the decision as well, and the 10th Circuit judges on Tuesday largely ruled against him on all four issues he brought.

In its 43-page ruling, a panel of three judges first considered a set of arguments born of an appeal to the Wyoming Supreme Court, where Eaton argued his lawyer had offered deficient representation at trial. The federal panel agreed with the state appeals court’s ruling, however, that because Eaton was mentally competent his trial lawyer could not be deficient when he did not contest competency. The opinion, penned by Judge Nancy Moritz, likewise denied an argument that Eaton should have been allowed on appeal to bring new evidence on the issue.

A second set of arguments state that Eaton’s constitutional rights were being denied when Johnson allowed a new penalty hearing. The federal panel, however, ruled the state-level sentence would be able to fairly incorporate whether and how the passage of time has prejudiced the sentencing hearing.

The 10th Circuit likewise rejected the final two arguments brought by Eaton’s lawyers. Although they had argued Johnson improperly determined that Eaton is still subject to the death penalty, the appellate panel ruled his arguments before the state court contradicted his federal arguments. In response to his final argument, that prosecutors suppressed evidence of their connection to a trial witness, the judges ruled the issue as appealed was irrelevant upon reversal of the sentencing decision.

Proceedings will pick up where they paused in Natrona County District Court upon appeal to the federal system.

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Crime and Courts Reporter

Shane Sanderson is a Star-Tribune reporter who primarily covers criminal justice. Sanderson is a proud University of Missouri graduate. Lately, he’s been reading Cormac McCarthy and cooking Italian food. He writes about his own life in his free time.

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