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D.A. gripes on pace of Eaton appeal
Dale Wayne Eaton has been sentenced to death for the 1988 slaying of Lisa Marie Kimmell of Billings, Mont. Wyoming Department of Corrections

D.A. gripes on pace of Eaton appeal

Jun 13, 2012 - By Ben Neary, The Associated Press

The former Riverton resident is Wyoming's only death-row inmate.

CHEYENNE -- The prosecutor who secured the death penalty conviction for the former Riverton man who is Wyoming's lone death row inmate doesn't see why the condemned man's appeal is moving so slowly.

Lawyers for Dale Wayne Eaton and the state Attorney General's Office filed papers last week saying it will take until July 30, 2013, to prepare for a federal court hearing on Eaton's claims that he didn't receive a fair trial in state court.

Eaton is challenging the constitutionality of the death sentence he received for the 1988 rape and murder of Lisa Marie Kimmell, of Billings, Mont. Eaton's lawyers don't dispute that he killed the 18-year-old.

Eaton lived in Riverton as a youth as was at Riverton High School with the class of 1965.

Casper District Attorney Mike Blonigen, who prosecuted Eaton in 2004, said he doesn't understand why Eaton's appeal can't move faster. Eaton appealed to federal court in 2009 after the Wyoming Supreme Court upheld his death sentence.

"This is what I've said before: some people say in Wyoming we don't have the death penalty, we have the death sentence," Blonigen said. "It's 2004 to 2013. That will put it nine years after the completion of the trial."

Blonigen said it's clear that reviewing capital cases requires great care.

"This is the most important level of federal review of the state action," he said. "But nine years? In a case where nobody's arguing this man is innocent?"

U.S. District Judge Alan B. Johnson ruled in May that Eaton deserves to call witnesses to testify about his claims, including his allegation that his trial lawyer, Wyatt Skaggs, was ineffective. Skaggs has declined comment on Eaton's allegations.

Kimmell was abducted while driving alone from Colorado to Cody. A fisherman later found her body 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.

Investigators later unearthed Kimmell's car on Eaton's property near Moneta.

At a hearing last summer, Eaton attorney Sean O'Brien said that the issue in the appeal is a life sentence versus the death penalty. "We're not saying that an innocent man here has been convicted of a crime," he said.

Blonigen said the delay would be "very difficult on the victims' families. They're just in limbo again on what's going to happen. There must be some way to streamline this process without affecting somebody's right to a fair hearing. But it hasn't been done in the United States so far."

The judge also ruled last month that Eaton could look into whether his trial team failed to investigate "mitigation evidence" -- things about his past or mental condition that would underscore his humanity and possibly convince a juror not to impose the death penalty.

Johnson dismissed Eaton's request to investigate other claims, including his allegation that Blonigen failed to disclose that a witness who testified against Eaton had reached a deal with federal prosecutors for leniency in another case.

David Delicath, deputy Wyoming attorney general, said it would take so long to hold a hearing on Eaton's appeal largely because his attorneys want that much time to gather information.

"So regardless of whether the state is ready to go sooner than that, the timing, well it's up to the court ultimately, but it's driven largely by the needs of Mr. Eaton and his attorneys," Delicath said.

Eaton's lawyers, Terry Harris of Cheyenne and O'Brien, of Missouri, didn't immediately return calls seeking comment Monday.

The same legal team succeeded a few years ago in overturning the death sentence for James Harlow, who was convicted in the stabbing death of a correctional officer at the state penitentiary in Rawlins. The lawyers are raising claims in Eaton's case similar to those that brought them victory in Harlow's case.

U.S. District Judge Clarence Brimmer of Cheyenne ruled in 2008 that Harlow was denied a fair trial in state court because of conflicts between his trial lawyer, Keith Goody, and a former state public defender. Brimmer also ruled that the state Public Defender's Office had failed to give Harlow's trial team enough money to prepare a proper mitigation case for Harlow.

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