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granted parole on the condition that he be sent to Germany, where he was born and has citizenship, but the parole board rescinded the decision.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.
Filed in U.S. Bankruptcy Court
North Dakota
David and Roxann Kary Hagen, doing business as R&D Trucking, Bismarck, Chapter 7
Julie K. Dupree, Grafton, Chapter 7
Bryan Ray Bellon and Adriana Lorene Hoskins, Mandan, Chapter 13
Shane Carlton Heck, doing business as Heck Farms, Cavalier, Chapter 12
Dale McPherson, Grafton, Chapter 7
Kortney Noel Benjamin, also known as Kortney Turbin, West Fargo, Chapter 7
Judilee Gica Solis, Killdeer, Chapter 7
Drake Allen Pauley, Williston, Chapter 13
Kathy Sue Snobl, Grand Forks, Chapter 13
Briana Lynn Claire Eklund, Fargo, Chapter 7
Chad Richard and Rebecca Lynn Forderer, Bismarck, Chapter 7
Nicole Marie Unruh, Mandan, Chapter 7
Brianna Marie Kunz, Fargo, Chapter 7
Robert John Floer, Fargo, Chapter 7
Cory Dean Matson, Horace, Chapter 13
Sarah Lynn and Nicolas Blaise Griffin, Grand Forks, Chapter 7
Samantha Rose Cedillo, also known as Samantha Ulshafer, and Sammy Joe Cedillo, Grand Forks, Chapter 7
Jonathon R. Lakoduk, Minot, Chapter 7
Cleone Colett Gackle, also known as Cleone Mcalpin, Fargo, Chapter 7
Jose Alfredo Salinas, Grafton, Chapter 7
Shania Mae Emin, formerly known as Shania Olson and Shania Alto, and Brandon Lee Emin, Fargo, Chapter 7
Elisabeth Marie Wickum, Minot, Chapter 7
Trista Lyn Blake, West Fargo, Chapter 7
Minnesota
Bankruptcy filings from the following counties: Becker, Clay, Douglas, Grant, Hubbard, Mahnomen, Norman, Otter Tail, Polk, Traverse, Wadena and Wilkin.
Joseph W. and Anicia L. Topp, Detroit Lakes, Chapter 7
Zachary John and Tara Marie Otto, Moorhead, Chapter 13
Abigail Marie Yliniemi, Moorhead, Chapter 7
Marshall Lee Johnson, Audubon, Chapter 7
Stephanie Mitchell, formerly known as Stephanie Weyer and Stephanie Hanson, and Christopher Randell Mitchell, Fergus Falls, Chapter 7
Cassandra Ann Feldt, Detroit Lakes, Chapter 13
Jessica Ann Guzman, also known as Jessica Werness, East Grand Forks, Chapter 7
Chapter 7 is a petition to liquidate assets and discharge debts.
Chapter 11 is a petition for protection from creditors and to reorganize.
Chapter 12 is a petition for family farmers to reorganize.
Chapter 13 is a petition for wage earners to readjust debts.
Our newsroom occasionally reports stories under a byline of “staff.” Often, the “staff” byline is used when rewriting basic news briefs that originate from official sources, such as a city press release about a road closure, and which require little or no reporting. At times, this byline is used when a news story includes numerous authors or when the story is formed by aggregating previously reported news from various sources. If outside sources are used, it is noted within the story.
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North Dakota might be the country’s most underrated summer state, and that is exactly the point. While the crowds pile into busier places, its towns stay quiet under wide prairie skies. You can boat and fish and catch outdoor theater without ever fighting for a parking spot. Some towns sit in the Badlands, others along the Missouri River or up near the Canadian border. These eight prove a crowd-free summer is still easy to find.
Medora
Medora has fewer than 200 full-time residents and still feels like the liveliest stop for miles. The Marquis de Mores, a French nobleman, founded the town in 1883 and left behind buildings you can still walk through, while his wife funded St. Mary’s Catholic Church, the oldest Catholic church still in use in the state. The big summer event is the Medora Musical, entering its 61st season this June at the open-air Burning Hills Amphitheater, with live music and history nightly except Mondays. Right next door, Theodore Roosevelt National Park’s South Unit reopened its full 36-mile Scenic Loop Drive in late 2025 after a six-year closure, so the bison, wild horses, and painted buttes of the Badlands are all back in reach. Golfers can take on Bully Pulpit, named USA Today’s number-one public course in 2025, where the back nine climbs straight into the buttes. And come July 4, 2026, Medora gains the brand-new Theodore Roosevelt Presidential Library, a 100,000-square-foot attraction minutes from the park.
Valley City
Valley City calls itself the City of Bridges, and the drive in on the Sheyenne River Valley National Scenic Byway shows you why, rolling past wooded river bends and historic spans. Most road-trippers blow right by it on I-94 between Fargo and Jamestown, which is their loss. The Hi-Line Railroad Bridge runs nearly 3,900 feet long and sits about 162 feet above the river, ranking among the longest and highest single-track rail bridges in the country. In summer, Lake Ashtabula is the place to fish, boat, ski, or swim, while downtown hosts Summer Nights on Central every second Thursday from June through September. Just outside town, the 213-foot Medicine Wheel at Medicine Wheel Park lines up with the solstices, a quietly remarkable thing to find on the prairie.
Dunseith
Dunseith sits right on the Canadian border, where Turtle Mountain’s wooded slopes meet a string of quiet lakes. Its claim to fame is the International Peace Garden, a 3.65-square-mile spread straddling the US and Canada where you can wander flower beds and cross between two countries almost without noticing. Summer is the sweet spot to visit, since the grounds stay uncrowded outside the early-July national holidays, and the garden rents kayaks by the half-day. Lake Storman anchors the recreation here, and just up the road stands the W’eel Turtle, a sculpture built from more than 2,000 painted wheels. Cap the day with prime rib at Dale’s Cafe, then mark your calendar, because the first International Indigenous Peace Powwow lands here in early July 2026.
Mandan
Most people treat Mandan as the road to Bismarck, which keeps Fort Abraham Lincoln and the Missouri River bottomlands refreshingly quiet all summer. Fort Abraham Lincoln State Park is the oldest state park in North Dakota, complete with a reconstructed military fort, and it is where George Custer rode out on his doomed 1876 march to the Little Bighorn. The Mandan Rodeo, one of the world’s oldest continuously running rodeos, fills early July with denim, boots, and wide-brimmed hats, a tradition that predates North Dakota’s statehood by about a decade. If the kids need a break from history, the Raging Rivers Waterpark has tube slides, speed slides, and a lazy river to burn off the afternoon.
Garrison
Garrison bills itself as the Walleye Capital of the World, and the title is earned out on Lake Sakakawea, the reservoir the Garrison Dam created on the Missouri River back in 1953. Anglers in the know come for some of the best walleye water in the upper Midwest, while everyone else drives past toward flashier spots. Fort Stevenson State Park spreads over 500-plus acres of camping, biking, hiking, and boating under wooded bluffs, on the site of a frontier outpost now partly beneath the lake. Grab a shake at the Four Seasons Restaurant and Ice Cream Parlor, then poke around the North Dakota Firefighters Museum to see antique trucks and old firefighting gear.
Jamestown
Fargo, 100 miles east, hogs the eastern North Dakota spotlight, but Jamestown quietly offers just as much history and a lot more roadside character. Out front of the North American Bison Discovery Center stands the World’s Largest Buffalo, a 26-foot, 60-ton concrete bull built in 1959 by sculptor Elmer Petersen. Inside, exhibits trace the bison’s history and survival, and a live buffalo herd grazes nearby. For open-air time, Jamestown Reservoir and Pipestem Dam offer swimming, fishing, boating, and miles of trails. Jamestown is also the birthplace of Louis L’Amour, the best-selling Western novelist, and you can trace his early life on the self-guided Trail of Louis L’Amour, centered on a kiosk at the Alfred Dickey Public Library.
Walhalla
In the state’s far northeastern corner near the Canadian border, Walhalla flies under almost everyone’s radar. The Pembina Gorge nearby holds one of the largest unbroken blocks of forest in North Dakota, and this summer it gets a major upgrade, as Pembina Gorge State Park opens in June 2026 as the state’s 14th state park and its first new one since 1989. The Pembina River threads the gorge for seasonal kayaking, and Frost Fire Summer Theatre stages Broadway-style musicals on an outdoor stage right above it through July. History buffs should not skip the Gingras Trading Post State Historic Site, where fur trader Antoine Blanc Gingras built a hand-hewn log store and home that rank among the oldest buildings still standing in the state.
Washburn
Forty miles north of Bismarck, where most day-trippers turn around, Washburn keeps one of the richest Lewis and Clark stories almost to itself. The Lewis and Clark Interpretive Center walks you through the brutal winter of 1804 and 1805, and just west, Fort Mandan State Historic Site holds a full-size replica of the fort where the expedition waited it out. Nearby, Cross Ranch State Park runs wild along the Missouri River, with prairie-and-cottonwood trails for hiking, fishing, and paddling under the watch of bald eagles. When lunchtime hits, the Cabin Bar and Grill turns out one of the best burgers in the region.
Summer In North Dakota
North Dakota is one of America’s best-kept summer secrets, not just a box to tick on the way to visiting all fifty states. Between the Badlands, the Missouri River, and a string of welcoming towns, you get real outdoor adventure without the crowds that turn a trip into a chore.
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