Eaton attorneys try new line in death-sentence appeal

Jun 18, 2013 By Ben Neary, The Associated Press

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

A federal judge on Monday approved more testing for Dale Wayne Eaton, the former Riverton man who is Wyoming's lone death-row inmate, after his lawyers said his IQ may be low enough that he could be covered by a federal ban against executing people with intellectual disabilities.

Monday's announcement from Eaton's team that they intend to investigate whether he has a mental disability lays out a new possible avenue of attack on his death sentence after nearly a decade of state and federal appeals.

The U.S. Supreme Court in 2002 banned the execution of a "mentally retarded offender" on the grounds that it violates the Constitution's prohibition against cruel and unusual punishment.

Eaton, 68, is challenging the constitutionality of the state death sentence he received in 2004 for the rape and murder of 18-year-old Lisa Marie Kimmell of Billings, Mont. The Wyoming Supreme Court already has upheld his conviction and his life hangs on the success of his federal appeal.

Eaton's lawyers don't dispute he killed Kimmell. She disappeared in 1998 while driving across Wyoming, and 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. Investigators then found Kimmell's car buried on Eaton's property in Moneta, west of Casper.

Until now, Eaton's lawyers in his federal appeal have hammered on their claim that Eaton's original state court defense team didn't develop "mitigation evidence." They say his lawyers failed in their constitutional obligation to present information about Eaton's past that would have underscored his humanity and possibly convinced at least one juror not to sentence him to death.

U.S. District Judge Alan B. Johnson of Cheyenne has blocked out several weeks for a hearing later this summer to hear evidence that Eaton's legal team has unearthed about his tortured family background and legal and personal history.

Eaton's lawyers have filed statements in court from many people who knew him, saying he lived a tough life and was living alone in filth and poverty in an old school bus on the Moneta property around the time Kimmell was killed.

At the end of this summer's hearing, Johnson will have to decide whether Eaton's original state court jury might have spared him the death penalty if his original legal team had done a better job of presenting his personal history. More federal appeals appear likely however the judge rules.

Missouri lawyer Sean O'Brien, a law professor and death penalty specialist, is on the team of lawyers representing Eaton. O'Brien told Johnson on Monday that recent expert review of tests performed on Eaton raised the intellectual disability concern.

O'Brien said one expert in San Diego reviewed the results and concluded that Eaton's IQ may be in the 70s. A score of 100 is average intelligence.

"Our experts are telling us that they can't rule out intellectual disability," O'Brien said. The experts say they need to perform more tests and investigations, O'Brien said.

Johnson approved Eaton's lawyers' request for $14,000 for further testing to determine whether his IQ is low enough that his execution would be barred. Depending what further testing shows, O'Brien said Eaton's team may file more legal paperwork which he said could lead to more legal proceedings possibly later this year.

Eaton's lawyers said they filed a written motion with Johnson last week laying out their concerns about Eaton's possible disability and stating the need for more testing. They said they marked the filing so that only the judge and lawyers for the state -- not the public -- could review it.

Lawyer David Delicath of the Wyoming Attorney General's Office told Johnson that he hadn't seen the motion before Monday's court hearing. He said that the state courts already had ruled that Eaton was competent to stand trial.

"If the issue is that he's not competent to face execution, then there's a state procedure to address that," Delicath said. "And I think the state should have the first opportunity to address that."

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