- Associated Press - Friday, July 22, 2016

CHEYENNE, Wyo. (AP) - The state of Wyoming can continue to seek the death penalty for a man convicted of the 1988 murder of a Montana woman, a federal judge has ruled.

U.S. District Judge Alan Johnson of Cheyenne ruled that Wyoming’s failure to appoint lawyers for Dale Wayne Eaton last year doesn’t foreclose the state from holding another hearing to ask a jury to sentence Eaton to death.

Johnson in 2014 overturned Eaton’s original death penalty in the 1988 murder of Lisa Kimmell of Billings, Montana. She had disappeared in 1988 while driving across Wyoming, and her body was found in the North Platte River.

The investigation of Kimmell’s murder stalled for years until a DNA test on Eaton while he was in prison on an unrelated case found he matched genetic material taken from her body. Investigators later dug up her car on his remote property in Moneta and he was sentenced to death in 2004. Eaton’s lawyers haven’t disputed on appeal that he killed Kimmell.

On Wednesday, the 10th Circuit Court of Appeals, following Johnson’s July 11 decision allowing the state to continue seeking the death penalty, issued an order granting Eaton’s request for the appointment of lawyers to represent him in his continuing federal appeal.

In striking down Eaton’s original death sentence, Johnson agreed with the contention of Eaton’s lawyers that his previous attorneys from the Wyoming Public Defender’s Office failed to present factors that might have given jurors a reason to consider sparing his life, such as his low intelligence and abuse he suffered as a child.

Johnson in his 2014 ruling gave the state the option of either allowing Eaton to serve life in prison without parole or appointing a new legal team to represent him in a second death penalty sentencing hearing.

Eaton appealed Johnson’s ruling, saying the state should have been foreclosed from seeking to execute him because many people who had known him as a free man had died in the intervening years.

Casper District Attorney Mike Blonigen filed papers early last year stating his intention to hold a new death penalty hearing. But the state didn’t appoint new lawyers for Eaton within Johnson’s set deadline.

Johnson ruled last summer the state had violated his order to appoint new lawyers. But in his ruling this month, the judge ruled the violation wasn’t significant enough to block the state from continuing to seek to put Eaton to death.

David Delicath, lawyer with the Wyoming Attorney General’s Office, represents the state in the Eaton’s appeal. Delicath declined comment Friday.

An attempt to reach Terry Harris, a Cheyenne lawyer representing Eaton, was not immediately successful Friday.

In an interview Friday, Blonigen said it could take possibly a few years for the appeals court to resolve Eaton’s pending appeal. “It’s a long way from resolved,” he said.

Blonigen said his office is committed to continuing to seek the death penalty against Eaton but said state officials need to consider whether they’re fully committed to supporting and funding such prosecutions.

“The state has to ask itself a very serious policy question - and this has to be settled in Cheyenne, and not by me - and that is whether we want to continue with this, given that the courts have clearly indicated that they are anti-death penalty,” Blonigen said.

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