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granted parole on the condition that he be sent to Germany, where he was born and has citizenship, but the parole board rescinded the decision.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.

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.

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.