North Dakota
Lawyers clash over claims that prosecutors concealed important evidence in 1986 North Dakota murder case
DEVILS LAKE, N.D. — Prosecutors told the lawyer of a man convicted of a brutal 1986 stabbing murder that all of the state’s evidence in the case against his client was available to the defense under his office’s “open file” policy.
Now, almost 40 years after the murder, lawyers for Werner Kunkel, who is serving a life sentence, are arguing that the prosecution concealed key evidence that could have established Kunkel’s innocence.
Todd Burianek, Kunkel’s trial lawyer, maintains in court papers that statements from three witnesses — if they had been made available to the defense — would have enabled him to better investigate and question the witnesses in the 1995 trial.
All three witnesses gave statements to the prosecution saying they had seen the murder victim in the case, Gilbert Fassett, alive after Aug. 1, 1986. The date is crucial because multiple trial witnesses testified that they last saw Fassett alive that night while drinking with Kunkel in Devils Lake bars.
“As I looked into the case, I was focused on any evidence that might have suggested that Mr. Fassett was alive after August 1, 1986,” Burianek said in a sworn statement in support of Kunkel’s petition for relief, which if granted could result in a new trial or dismissal of the charge.
Burianek’s statement was filed May 23 in Ramsey County District Court along with a brief by his current defense lawyers, Dane DeKrey of Moorhead and James Mayer of the Great North Innocence Project in Minneapolis.
Kunkel, who after his conviction for Fassett’s murder changed his last name to Rümmer, is serving his life sentence at the James River Correctional Center in Jamestown. He was once granted parole on the condition that he be sent to Germany, where he was born and has citizenship, but the parole board rescinded the decision.
The Forum wrote about controversies in the case in a special series published in July 2024 titled
Who Killed Eddie & Gilbert?
There were no eyewitnesses in the case. Kunkel’s conviction relied heavily on prison and jail informants — witnesses
Kunkel argued had ulterior motives for implicating him,
including lenient treatment for themselves or
settling a grudge against him.
Studies have shown that “jailhouse snitches” are often unreliable and their testimony has resulted in wrongful convictions.
In his recent statement, Burianek said he made standard discovery requests seeking, among other things, all witness statements and “whatever potentially exculpatory evidence” was in the possession of prosecutors or investigators.
Burianek was given access to case documents in the Ramsey County State’s Attorney’s Office.
“It was represented to me that this was ‘open file’ discovery,” Burianek said in his statement. “In other words, based on our communication and common practices at the time, I expected that any potentially exculpatory evidence in the possession of the State’s Attorney or law enforcement would be contained in the field that the State’s Attorney permitted me to review.”
Exculpatory evidence is any information that helps prove a defendant’s innocence in a criminal case. Prosecutors have a duty to hand over to the defense any exculpatory evidence — even without being asked — under a landmark 1963 Supreme Court case, Brady v. Maryland, which established the Brady Rule.
Doug Broden, Rümmer’s lawyer in a 2006 appeal, also said he “believed in good faith” that all of the documents had been provided earlier to Burianek by the Ramsey County State’s Attorney’s Office under its Brady Rule obligations.
The three witnesses, and other newly discovered exculpatory evidence, only became known after Kunkel’s current attorneys asked for and received the prosecution’s case file in 2023.
Contributed / North Dakota Court System
As previously reported by The Forum
, one of the newly discovered witness statements came from a National Guard member, who told investigators he picked up Fassett on Aug. 2 — a day after jurors were told that Kunkel murdered the victim. The guardsman remembered the date because he had to fly out later that day for training, an obligation that was confirmed by Guard records.
“The state compensated for the lack of eyewitness testimony or physical evidence against Werner by repeating for the jury the mantra that no one saw Fassett alive after he was seen with Werner on the night of August 1, 1986,” his lawyers wrote in a brief.
The statements by “three different witnesses who independently reported seeing Fassett alive after that night, puts the lie to the state’s primary trial theme,” his lawyers added.
In response to defense allegations that the state concealed exculpatory evidence, Daniel Howell of the Ramsey County State’s Attorney’s Office denied that prosecutors suppressed evidence.
“While the State cannot claim that this evidence would not have had some benefit to Petitioner at trial, its overall effect on the result of trial would have been negligible in light of the other evidence presented at trial and would not have affected the verdict,” Howell wrote.
The claims raised in the latest appeal could have been raised at trial or in earlier appeals, including the evidence discovered in 2023, under a discovery request, Howell argued.
“This request could have been made at any time since Kunkel’s conviction in 1995, and an attorney exercising reasonable diligence at Kunkel’s first and second post-conviction efforts would have done so,” Howell wrote.
“To rely on a case file that has changed possession several times over many years, without reviewing any possible discrepancies between said files and the State’s evidence and case file might raise issues of ineffective assistance of counsel,” Howell added.
The prosecution also argued in its brief that the issues raised in the latest appeal already had been litigated, and their assertion now is a misuse of process.
In rebuttal, defense lawyers argue in their brief that prosecutors have a duty to turn over any exculpatory evidence, regardless of whether the defense demands it, and Howell is trying to “shift responsibility for its due process violation onto Werner,” a “misapplication” of the Brady Rule.
“I believe that having the Brady material available to me would likely have made a difference at trial,” Burianek said in his statement. “Without it, I was unfairly hamstrung in my ability to respond to the State’s primary theme: that no one saw Mr. Fassett alive after the night of August 1, 1986.”
A clarifying statement by the pathologist who performed the autopsy on Fassett presented by defense lawyers in the latest appeal also helped to prove innocence, Rümmer’s lawyers argue. The liver showed no evidence of alcohol, and there was no detectable amount of alcohol in his system, according to the autopsy.
“Given Fassett’s obvious state of severe intoxication on the evening of August 1, 1986, the new evidence establishes that Werner did not kill Fassett that night as maintained by the state,” DeKrey and Mayer wrote in their brief.
In response, Howell said Rümmer’s lawyers failed to address “other possibilities to explain the lack of alcohol in Fassett’s liver.”
Prosecutors presented little physical evidence in their case. One critical piece was a bloody shirt Fassett was wearing when his body was discovered at Ski Jump Hill, a landmark on Spirit Lake Nation near Fort Totten.
Mayer and DeKrey wanted to have Fassett’s clothing tested to see if it contained any DNA
from his assailant, but the shirt was no longer available. The two lawyers claimed Fassett’s clothing and other physical evidence from the scene was “intentionally destroyed” in “bad faith,” violating Rümmer’s due process rights.
Contributed
In response, Howell argued that Rümmer “raises no excuse as to why DNA testing could not have been done in prior proceedings.” DeKrey and Mayer argued that the intentional destruction of the physical evidence after trial violated local, state and federal policies and practices.
Suppression of exculpatory evidence can be grounds for prosecutorial misconduct. Lonnie Olson was the Ramsey County state’s attorney who prosecuted Rümmer. Olson, who now is a district court judge in Devils Lake, has declined to comment on the suppression allegations.
District Judge Barbara Whelan, who is seated in Grafton, is the judge handling the appeal. No hearing has been scheduled to hear the arguments.
North Dakota
Wintering Well Series Back For Another Season At McKenzie Co. Heritage Park & North Dakota Oil Museum
For those who are looking for community interaction, interested in learning an old-fashioned skill, or just simply looking for a way to offset those winter blues, join McKenzie County Heritage Park & North Dakota Oil Museum, 904 2nd Ave. SW, Watford City, for another season of Wintering Well: Slow Down & Savor. Classes begin Jan. 2, 2026, and will continue the first Friday of each month through the winter, 5-7 p.m. CT..
The holiday season is a time where many remember and honor past traditions, though it can also be a time where the usual business of life gets ramped up. In this modern word, we are heavily inundated with outside pressures that tell us to “keep busy and work harder”. Technology can be a constant pull, drawing us away from quiet connection.
But, for many of the people who settled and lived in this region before us, life, the holidays and winter in general carried a different feeling altogether. The winter season was often a time that was looked forward to and folks seemed more willing to go along with nature rather than struggling against it. Winter is a time of rest and renewal. A time for life to slow, and strength and energy to be gathered for spring, summer and fall. With the cold winter outside their doors, people were content to sit by the fire, catch up with friends and family, and engage in pastimes that were both fun and functional.
These Hygge style Wintering Well evenings offer an opportunity to slow down and savor this time of year. Bring a crocheting, knitting or embroidery project or start a new one. Even if you have no experience with these skills, bring a crochet hook and some yarn and other participants can help you get started. In addition to learning new skills and practicing existing ones, there is good conversation to share, new relationships to foster and snacks will be served.
These classes are intended for adults, but tweens who want to learn are welcome to come along with their parents. There is no charge to join, but donations are always welcome.
Take a step back from technology and busy schedules to reconnect with the old-fashioned life at these cozy, creative sessions, and Winter Well this season.
For more information, visit McKenzie County Heritage Park & North Dakota Oil Museum’s Facebook page or call them at 701-842-6434.
EDITOR’S NOTE: For help with substance abuse or addiction, North Dakota residents can contact the All of Us In Recovery program at
allofusinrecovery.com
or the North Dakota Department of Human Services at
hhs.nd.gov/behavioral-health
. National help is also available at 1-800-662-4357.
FARGO — A special program for those battling addiction in North Dakota is finding huge successes with a state program called “All of Us In Recovery,” or AIR.
The proof can be found in the lives now changed because of the team approach.
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BISMARCK — Despite stubborn inflation, higher daily costs and
a dip in holiday spending,
most North Dakotans are as committed to charitable giving, according to the latest North Dakota Poll, commissioned by the North Dakota News Cooperative.
A total of 78% of
North Dakota
residents say charitable giving is important to them personally, with 31% indicating it is very important and 47% somewhat important.
Damon Gleave, interim executive director of the Dakota Medical Foundation, which spearheads the 24-hour charity event
Giving Hearts Day
each year, said the results of the poll were consistent with what the foundation has seen with the success of the event.
“Regardless of age or gender or what part of the state people are from, North Dakotans are givers,” he said.
Looking further at the data, however, shows a split in how much people feel they can afford to give.
Asked to describe how much they give each year, 58% gave between $100-$999 annually, while 32% gave between $1,000-$5,000 or more per year. Another 10% declined to answer.
“The fact that folks are still interested in supporting
charitable organizations
during these interesting financial times is certainly encouraging,” said Shawn McKenna, executive director of the North Dakota Association of Nonprofit Organizations.
McKenna said some of the rhetoric coming out of President Donald Trump’s administration has impacted nonprofits and NGOs, though that includes increased giving to some and less to others.
Some smaller nonprofits that saw grant funding dry up because of government efficiency efforts are having a harder time since they lack the staff to solicit contributions, McKenna said.
In another data point from the poll, nearly half of respondents said generosity should be “homegrown,” with 46% saying support for local organizations is their top reason to give.
“It does look like folks are really interested in helping out in their own backyard versus sending it off to whatever the big national type organization is,” McKenna said.
Among the other factors considered most important, 16% said support for faith-based groups was highest on their list of reasons, while another 16% more said giving to causes they have a personal connection to was most important.
A total of 60% of respondents said they give throughout the year, while 23% said they usually give at the end of the year.
“There’s a preference to support local organizations — whose work tends to more directly impact people in a given community — as well as a shift toward donors making larger gifts to a smaller number of charities,” Gleave said. “We think this is a direct result of charities cultivating better relationships with their donors over time, which ultimately leads to more impactful, sustained giving.”
Kim Hocking, board president of the Bismarck Mandan Unitarian Universalist congregation, said the poll data was in line with what he sees in giving habits.
Hocking said one thing that comes out in the poll, and something he sees on a daily basis, is that people are looking for a sense of community. That desire often matches giving habits.
“As a group, we want to be a part of something, and if we know about it, and we see, oh, we could help with that, then we want to be a part of that,” Hocking said. “That goes along with supporting local organizations, supporting causes you have a personal connection to.”
Most respondents do not give a certain percentage of their annual income to charitable causes, according to the poll.
Only 22% say they practice a form of tithing, long a traditional practice in Christian, Islamic and Judaic faiths.
The low number of people who budget a certain percentage of income, as well as the high number of people that only give up to $1,000 annually, is concerning to some.
Bishop Craig Schweitzer of the Western North Dakota Synod-ELCA, said giving has been “pretty flat” over the past decade, but he was surprised that over half of people gave so little each year.
“That’s shocking to me a little bit because that’s obviously less than 1% of average income in North Dakota,” Schweitzer said.
“I mean, I look at it as a person of faith, the entry level to be a follower of Jesus is 10%, and then my offering is above and beyond that 10%,” he said. “If we’re spending money on things that aren’t a reflection of our faith, how does that reflect who we are as people of faith?”
Schweitzer brought up how important local organizations like churches are in times of need and stress, giving the example of the wildfires in northwest North Dakota in the fall of 2024.
“The church was huge,” he said. “It stepped up and made sure people were cared for and probably gave beyond anything they imagined they would give to something like that before, financially and physically.”
The North Dakota Poll was conducted by Mason-Dixon Polling & Strategy Inc. of Jacksonville, Florida, from Dec. 10-13 2025. A total of 625 North Dakota adult residents were interviewed statewide by telephone. The poll has an error margin of + or – 4%.
The North Dakota Poll is the only regular, nonpartisan statewide survey of eligible North Dakota voters and consumers.
The North Dakota News Cooperative is a nonprofit news organization providing reliable and independent reporting on issues and events that impact the lives of North Dakotans. The organization increases the public’s access to quality journalism and advances news literacy across the state. For more information about NDNC or to make a charitable contribution, please visit newscoopnd.org.
This story was originally published on NewsCoopND.org.
____________________________________
This story was written by one of our partner news agencies. Forum Communications Company uses content from agencies such as Reuters, Kaiser Health News, Tribune News Service and others to provide a wider range of news to our readers. Learn more about the news services FCC uses here.
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