Judge sets 2-week hearing for Wyoming's lone death row inmate

2013-07-23T15:25:00Z 2013-08-12T14:42:05Z Judge sets 2-week hearing for Wyoming's lone death row inmateThe Associated Press The Associated Press
July 23, 2013 3:25 pm  • 

CHEYENNE, Wyo. — A federal judge has scheduled a two-week hearing on claims by Wyoming's lone death row inmate that he didn't get a fair trial before a state court jury sentenced him to death nearly 10 years ago.

Lawyers representing inmate Dale Wayne Eaton have listed scores of witnesses they intend to call at the hearing, set to start July 30 before U.S. District Judge Alan B. Johnson in Cheyenne.

Eaton, 68, is challenging in federal court the constitutionality of the 2004 death sentence he received in state court for the 1988 rape and murder of Lisa Marie Kimmell, 18, of Billings.

Eaton's lawyers say the witnesses they intend to call will testify about different aspects of Eaton's trial, criminal history and personal life. The lawyers intend to show that if Eaton's trial team had painted a more complete portrait of his tortured life, at least one juror might have voted against putting him to death.

For example, one witness is prepared to testify that he saw a group of boys strip Eaton when he was a child in the 1950s and rub his private parts with stinging thistles. Other witnesses include Eaton's ex-wife and other relatives who can talk about his mental state. Still others are medical and law enforcement professionals.

Eaton's lawyers don't dispute that he killed Kimmell. She disappeared in 1988 while driving across Wyoming. Her body was found later in the North Platte River. The investigation stalled until 2002, when DNA evidence linked Eaton to the case while he was in prison on unrelated charges.

At the time of Kimmel's murder, authorities say Eaton was living by himself in a rundown compound in Moneta, west of Casper. Authorities say he kept Kimmell captive there and raped her before killing her and burying her car on the property.

In the roughly five years since Eaton asked Johnson to review his case, the judge has whittled the issues in the case down to three basic questions:

- Whether Eaton's defense team at trial failed to develop a workable attorney-client relationship.

- Whether Eaton's defense team failed to investigate aspects of Eaton's life that might persuade the jury to spare him the death penalty.

- And whether Eaton's lawyers in his state court appeal were more interested in protecting the reputation of the Wyoming Public Defender's Office than they were in proving that Eaton didn't get a fair shake at trial.

Attempts to reach Cheyenne lawyer Terry Harris, a principal lawyer in Eaton's federal appeal, were unsuccessful Tuesday. He did not immediately return telephone messages seeking comment.

Eaton's lawyers last month asked Johnson to approve more testing for Eaton. The judge approved $14,000 for testing after the lawyers said they had uncovered new evidence that Eaton's IQ may be low enough that he could be covered by a federal ban against executing people with intellectual disabilities.

Since that hearing, Eaton's attorneys have filed a number of motions and orders, which have been sealed and are unavailable for public review.

David Delicath, a senior lawyer with the Wyoming Attorney General's Office who represents the state in the appeal, argues that Eaton received a fair trial and that his death sentence should be carried out.

Delicath said the state plans to call Eaton's original lawyers as witnesses and also may call investigators who originally worked on the case to verify reports they prepared. He said the state doesn't intend to call witnesses to speak to the nature of the crime.

"I think everybody agrees this was a pretty horrible crime. The question in front of Judge Johnson now is whether Mr. Eaton was represented by competent counsel at the trial," Delicath said.

Casper District Attorney Mike Blonigen prosecuted Eaton in state court. He said Tuesday that the length of the appeals process — now approaching 10 years since Eaton was sentenced — undermines the clear intent of the Wyoming Legislature for the state to have a death penalty, not merely a death sentence.

"The law never guaranteed you a perfect trial. It guaranteed you a fair trial," Blonigen said. "And it seems to me that many of these complaints are literally just nitpicking things to death. Every attorney would try a case differently. You can try the heck out of somebody else's case."

Such lengthy appeals leave victims' families feeling frustrated, Blonigen said.

"These longs delays are something that you warn families about, but it's very hard to appreciate unless you've experienced it," he said.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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