- Associated Press - Monday, May 18, 2015

CHEYENNE, Wyo. (AP) - A federal appeals court wants lawyers representing inmate Dale Eaton and the state of Wyoming to address whether he still faces a possible death sentence stemming from his murder conviction in the killing of a Montana woman.

U.S. District Judge Alan B. Johnson of Cheyenne last fall overturned Eaton’s death sentence in the 1988 rape and killing of 18-year-old Lisa Marie Kimmell of Billings, Montana.

The 10th U.S. Circuit Court of Appeals in Denver last week ordered lawyers for Eaton and the state to file briefs this month explaining whether the death penalty is still an issue in the case.

The appeals court noted that the Wyoming Attorney General’s Office never contested Johnson’s order giving the state 120 days to set a new death penalty sentencing proceeding for Eaton. That deadline passed in March.

Johnson said in his order that Eaton would remain locked up for life if the state didn’t pursue a new sentencing hearing.

Lawyers for both sides weren’t commenting and it’s unclear whether the appeals court could rule that the state is forbidden from once again seeking the death penalty against Eaton.

Before Johnson overturned the sentence, Eaton had been the lone person on death row in Wyoming.

Johnson ruled that Eaton’s initial trial lawyers failed to show the jury enough about Eaton’s personal history for them to have reason to consider sparing his life.

Eaton’s appellate lawyers had argued to Johnson that the jury should have heard about issues such abuse Eaton suffered as a child and his history of mental illness.

Casper District Attorney Michael Blonigen filed notice in state court earlier this year that he intended to hold a new death penalty sentencing hearing for Eaton. Blonigen was the initial prosecutor in the case against Eaton.

Eaton’s appellate lawyers appealed aspects of Johnson’s ruling to the Denver court, saying the state shouldn’t be allowed to seek the death penalty again.

Among other arguments, Eaton’s lawyers argued that too much time had elapsed and that too many people who had known Eaton when he was young had died and their testimony wouldn’t be available.

The Wyoming attorney general’s office has argued in favor of upholding Eaton’s death sentence since he filed his federal appeal in 2009.

David Delicath, a senior lawyer in the attorney general’s office, and Terry Harris, a Cheyenne lawyer representing Eaton on appeal, both said they intend to file briefs on the matter but declined further comment.

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