A Wyoming man convicted of the kidnapping, rape and murder of a teenage woman more than 30 years ago may still appeal his case to the U.S. Supreme Court, his lawyer told a Natrona County judge on Tuesday afternoon.
Sean O’Brien, the Kansas City, Missouri, lawyer and law professor who has led Dale Wayne Eaton’s recent post-conviction appeals, made the statement by phone to Judge Daniel Forgey during a mid-afternoon scheduling conference in Natrona County District Court that spanned about 10 minutes. The conference marked the first hearing in the state court since a regional federal appeals court issued an opinion this summer that declined to prevent prosecutors from seeking Eaton’s death.
Eaton, now 74, has asked the 10th U.S. Circuit Court of Appeals, in Denver, to reconsider its opinion.
The Wyoming attorney general’s office has until the end of the week to reply to the request. If the case returns to the state court, Eaton may again defend himself against the death penalty. On Aug. 5, about two weeks after the 10th Circuit’s decision, Natrona County District Attorney Dan Itzen filed paperwork indicating he would seek Eaton’s capital punishment.
The same day, he filed request for the status conference.
Neither Itzen nor Eaton appeared in court Tuesday. In the prosecutor’s stead were assistant district attorneys Mike Schafer and Kevin Taheri, who spoke only briefly. O’Brien appeared by phone with Lindsay Runnels, also of Kansas City, and Terry Harris, who practices in Cheyenne. O’Brien told Forgey a federal district court stay on proceedings in the lower court remains in place; he said a typical re-hearing, as he’d requested from the 10th Circuit, takes a month or two.
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The lawyer then noted that Eaton’s legal team is considering requesting review of the case by the U.S. Supreme Court.
“That is a possibility, at this point, that we’re considering,” the Kansas City lawyer said over the court phone. He did not say what factors he and co-counsel were considering. O’Brien did not immediately respond to an early Tuesday evening phone call requesting comment for this story.
Taheri then told the judge that the attorney general’s office — which has handled the appellate case — agreed that the federal stay remains in effect.
O’Brien told Forgey he would inform the judge of any updates from appellate courts, and the judge concluded the hearing.
The proceedings are the latest in a case that has largely been active in federal courts since Eaton’s 2004 conviction for the 1988 kidnapping, rape and murder of a woman. Although a jury found Eaton should be put to death, he spent a decade on death row before a judge ordered in 2014 he should be re-sentenced. A hearing to determine a new sentence has not yet been held.
Although authorities began investigating Lisa Marie Kimmell’s death shortly after her body turned up in the North Platte River, investigators were unsuccessful for a decade. In 1998, after Eaton was convicted of assault and sent to Wyoming State Penitentiary, authorities found Eaton’s DNA linked him to Kimmell’s body. 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 in early 2004 jurors convicted him of first-degree premeditated murder, felony murder, aggravated kidnapping, aggravated robbery and first-degree sexual assault. Days later, the jury found Eaton should be put to death.