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granted parole on the condition that he be sent to Germany, where he was born and has citizenship, but the parole board rescinded the decision.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
Louis Michel Poeltl, Grand Forks, Chapter 13
Kaylen Rae Stanleyu, formerly known as Kaylen Bahl, Fargo, Chapter 7
Michelle Vasicek, formerly doing business as Luna Wolf Sales, Fargo, Chapter 7
Justin David Scheidt, Bismarck, Chapter 7
Barrett Van Wagner, Dickinson, Chapter 7
Carolyn Williams, Bismarck, Chapter 7
John Todd Ukkelberg, West Fargo, Chapter 7
Natasha Anne Lafrenz, Bismarck, Chapter 7
Daniel Peter Binstock Jr., Bismarck, Chapter 7
Rodney Nelson, Reeder, Chapter 7
Shawn Solberg, Dickinson, Chapter 7
Kansas Aime Yankton, also known as Kansas Cavanaugh, Devils Lakes, Chapter 7
Erica Lynn Truhlicka, Fargo, Chapter 7
Stephanie Renee Hagerott, formerly known as Renee Hehn, Bismarck, Chapter 7
Nathan Thomas Schneider, Lignite, Chapter 7
Daniel Scott Diehl, Dickinson, Chapter 7
Wayne Rynart Courchene, Williston, Chapter 13
David Emil Raymond, Grand Forks, Chapter 7
Krista Renee Reed, West Fargo, Chapter 7
Travis Cecil Tharp, Williston, Chapter 7
Tyrell Michael Ledoux, Bismarck, Chapter 7
William Joseph Horneman, Merrill, Wis., Chapter 13
Kaleb James Brockman, Gwinner, Chapter 7
Edgardo Luis Torres-Rivera, Williston, Chapter 7
Minnesota
Bankruptcy filings from the following counties: Becker, Clay, Douglas, Grant, Hubbard, Mahnomen, Norman, Otter Tail, Polk, Traverse, Wadena and Wilkin.
Alexander Rudkowski, New York Mills, Chapter 7
Brandon Nash and Kayla Lynne Korn, Alexandria, Chapter 7
Ronald G. and Cindy Jo Schmitz, formerly known as Cindy Mills, formerly doing business as Crystal Rock Healing, Pelican Rapids, Chapter 7
Michael James Jordan, formerly known as Michael James Block-Jordan, and Christina Rose Jordan, Wadena, Chapter 7
Darren Michael McClure, Alexandria, Chapter 7
Steven Madrid Torres, Perham, 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.
BOWMAN COUNTY, N.D. — A 67-year-old Bowman, North Dakota, man is dead following a crash in southwestern North Dakota Friday morning, July 3.
According to a North Dakota Highway Patrol news release, at approximately 8:45 a.m. Friday, a 2019 Dodge Ram 1500, driven by the Bowman man, was traveling westbound on Highway 12 near mile marker 30, west of Bowman. The man experienced a suspected medical incident, causing the vehicle to leave the roadway to the left and enter the south ditch, the release said.
The vehicle continued westbound through the ditch, where the front of the vehicle struck a tree. After the impact, the vehicle traveled onto a gravel frontage road before coming to rest in the ditch. The man was transported by Bowman Ambulance Service to Bowman Hospital, where he was pronounced dead.
The man was wearing his seat belt.
The crash remains under investigation by the North Dakota Highway Patrol.
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.
North Dakota
Pembina bridge closure, causing headaches for community members, close to short-term solution
PEMBINA, N.D. — The closure of the Stutsman Street bridge has put some residents in Pembina out of reach of certain recreation spots. Timelines for bridge construction remain unclear as proposals for temporary fixes have been denied by the North Dakota Department of Transportation, but a Wednesday, July 1, meeting has brought some clarity to the issue.
The bridge has been out since early June. Mainly, the Pembina Golf Course has seen its business suffer due to children and local members being unable to access the course. John Feldman, treasurer of the Pembina Golf Course, calls the bridge a “lifeline to part of the city,” and its complete closure has been causing problems.
“All of our young kids that we’re trying to groom into golfers are not golfing anymore. Our locals that used to drive their golf carts across the bridge can’t do that anymore. So, business is down immensely,” Feldman said.
Feldman is part of a committee formed to work to get the bridge opened temporarily to pedestrians and carts. The committee has expressed its concerns with the city and city leaders are hoping to meet with NDDOT to address those concerns.
The Pembina City Council has been discussing the bridge and has made efforts to get in contact with NDDOT. Council President Connor Snitker told the Herald the NDDOT reached out to the city and a special council session took place Wednesday night with NDDOT present.
In an effort to find a temporary solution, city engineers had previously inspected the bridge to confirm the original findings and put forth a proposal to open the north half of the bridge to a weight-bearing capacity of one ton or less. That proposal, along with an alternative, was originally denied by NDDOT, but at Wednesday’s meeting, NDDOT said it would review federal regulations to find a temporary solution for pedestrians.
“We’re still running down every alternative path we can right now, trying to figure out if there’s a way to reclassify the bridge or do something that would allow us to have flexibility to at least have it operating at our temporary capacity,” Snitker said.
The DOT says the critical issues with the bridge make a temporary solution for pedestrians a challenge, but language in those regulations will be reviewed. A solution could be found as soon as this weekend.
“Late Tuesday night we received word from the Federal Highway Administration that there was an option we could pass along to the city and I think that went over well,” engineer Derek Pfeifer said. “We’ve been working really hard to find a short-term solution for them to at least allow pedestrians to cross the bridge.”
A load analysis was expected to be done Thursday to assess whether pedestrians would be able to cross. NDDOT remains adamant that only pedestrians would be allowed access with a temporary solution, and golf carts would still be unable to access the bridge.
“As long as the bridge meets a certain standard, it could open to pedestrians,” Snitker said. “It’s a step in the right direction.”
Main issues with the bridge are spalling — or flaking of surface materials — found under the load bearings, stress cracks and splitting in some of the pedestals above the columns. At the east end of the bridge, there has been five inches of movement toward the south. As the bridge moved, it sheared the anchor rods.
Before the bridge’s closure, children would regularly play the course. Easy bridge access allowed for some to even come to the course twice in a day. Now, a six-mile detour has seen that business go away.
The detour makes its way through gravel roads, which is prohibitive to golf carts and those who were walking to the course.
“We need the bridge open, not just for the golf course, but for the kids to come and play in the playground over there to play baseball,” Feldman said. “It’s really a livelihood over there for the kids and for adults.”
Looking ahead to a permanent resolution to the bridge, Pfeifer and NDDOT are looking to the city and county to come to a decision in order for them to determine the next steps.
“Do they want to fix it? Do they want to replace it?” he said. “A structural engineer will need to do an analysis of those findings that were there and what kind of effort it’s going to take to fix it. So at this point, it’s up to the city and county to determine how they want to move forward.”
Digital Content Producer and Sports Reporter at the Grand Forks Herald since December of 2020. Maxwell can be contacted at mmarko@gfherald.com.
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