Bungled Resentencing of Wyoming’s Only Active Death Penalty Case Revictimizes Victim’s Family

March 25, 2022 will mark the end of the only death penal­ty case in Wyoming — or at least the fam­i­ly of Lisa Marie Kimmell hopes it will. 

The fam­i­ly trav­eled from Colorado and Arizona to offer in-per­son vic­tim-impact state­ments at the January 21, 2022 sen­tenc­ing hear­ing where Dale Wayne Eaton (pic­tured), who had been Wyoming’s only death-row pris­on­er, was sched­uled to be resen­tenced to life. But as they wait­ed in a Casper court­room for the pro­ceed­ing to start, Eaton was nowhere to be found. The Wyoming Department of Corrections (DOC) had failed to trans­port him to the hearing.

Sheila Kimmell, Lisa Marie’s moth­er, told the court that see­ing Eaton by video wasn’t enough. ​“I want him here, this is my last time,” she said, break­ing into tears. ​“To be re-vic­tim­ized by the state after all this ….”

Eaton was sen­tenced to death in 2004 for kid­nap­ping, rap­ing, and mur­der­ing Kimmell in 1988. The mur­der had been unsolved for four­teen years when DNA evi­dence linked him to the crime. Although the tri­al judge expressed con­cerns that Eaton appeared to have ​“mem­o­ry prob­lems” and might not be able to assist in his defense, Eaton’s defense lawyers expressed ​“no inter­est” in pre­sent­ing a men­tal health defense and failed to inves­ti­gate and present mit­i­gat­ing evi­dence relat­ing to his sig­nif­i­cant men­tal health prob­lems. In 2014, a Wyoming fed­er­al dis­trict court over­turned Eaton’s death sen­tence as a result of those fail­ures but denied his chal­lenge to his con­vic­tion based upon his incom­pe­tence to stand tri­al. In 2019, the U.S. Court of Appeals for the Tenth Circuit denied Eaton’s appeal of the guilt-phase rul­ing. The appeals court also denied Eaton’s claim that Wyoming should be barred from attempt­ing to reim­pose the death penal­ty because the loss of mit­i­gat­ing evi­dence caused by the pas­sage of time and the deaths of poten­tial mit­i­ga­tion wit­ness­es made it impos­si­ble for him to have a fair resentencing. 

After pros­e­cu­tors said they intend­ed to seek the death penal­ty again, the tri­al court ordered a men­tal eval­u­a­tion. By then, the 76-year-old Eaton’s brain func­tion­ing had been fur­ther dam­aged by strokes, and he was diag­nosed with demen­tia and depres­sion. The tri­al court found him incom­pe­tent to stand tri­al. In September 2021, Natrona County pros­e­cu­tors agreed to with­draw the death penal­ty, and Eaton was sched­uled to be for­mal­ly resen­tenced to life on January 21, 2022.

The DOC issued an apol­o­gy to the Kimmell fam­i­ly for fail­ing to trans­port Eaton for the resen­tenc­ing hear­ing. DOC Director Dan Shannon said, ​“I would like to express my deep­est apolo­gies to the fam­i­ly of (vic­tim) Lisa Kimmell. I can­not imag­ine the feel­ings of betray­al the fam­i­ly must feel added to the trau­ma and vic­tim­iza­tion they have had to deal with sur­round­ing inmate Eaton.” 

Later, the DOC report­ed that it had inves­ti­gat­ed the fail­ure to trans­port Eaton and deter­mined it had nev­er received the trans­port order. Eaton’s hear­ing was resched­uled for March 23, forc­ing Kimmel’s fam­i­ly to trav­el to Wyoming once again if they wish to give their state­ments to Eaton face-to-face.

Kerry Drake, a jour­nal­ist and colum­nist for the inde­pen­dent on-line news pub­li­ca­tion WyoFile, described the Kimmell family’s’ expe­ri­ence as ​“a decades-long tragedy [in which] the state’s crim­i­nal jus­tice sys­tem has failed them, year after year.” ​“This was a long, painful jour­ney for the fam­i­ly that only hap­pened because Wyoming has the death penal­ty,” Drake wrote. ​“Without it, there would not have been years filled with appeals, hear­ings and dis­ap­point­ments. Eaton would have been con­demned to spend the rest of his life in prison and fad­ed into obscu­ri­ty, where he belongs.” From begin­ning to end, Drake said, the case is ​“a prime exam­ple why I think Wyoming should take the death penal­ty off the books.” 

Republican leg­is­la­tors have twice mount­ed efforts to repeal the state’s death penal­ty in recent years. Senator Brian Boner (R‑Douglas) spon­sored a repeal bill in 2021, not­ing that the death penal­ty costs the state $750,000 per year to keep attor­neys trained to han­dle cap­i­tal cas­es. In 2019, a bill to replace the death penal­ty with a max­i­mum sen­tence of life with­out parole passed the state House of Representatives by a vote of 36 – 21 and received unan­i­mous sup­port in the Senate Judiciary Committee, but it was defeat­ed in the full Senate by a vote of 18 – 12. The 2021 bill passed a sen­ate com­mit­tee by a 4 – 1 vote on March 4, 2021 but failed on the floor of the Senate two weeks lat­er by a vote of 19 – 11. 

Wyoming has not exe­cut­ed any­one since 1992, and Eaton was the last per­son on the state’s death row.