DEVILS LAKE, N.D. (Valley News Live) – A North Dakota judge has vacated a man’s 30-year-old murder conviction, finding prosecutors withheld key evidence that could have proven the victim was still alive after the defendant was in jail.
District Court Judge Daniel Narum issued the ruling Feb. 27, granting Werner Wolfgang Kunkel’s petition for post-conviction relief. Kunkel was convicted in 1995 of murdering Gilbert Fassett and sentenced to life in prison.
What Happened
Fassett’s body was found in Benson County, North Dakota, in August 1986. Prosecutors argued Kunkel killed Fassett between 10:30 p.m. Aug. 1, 1986, and the early morning hours of Aug. 2, 1986 — a three-hour window that became the foundation of the state’s entire case.
“The state’s whole theory was Gilbert Fassett had to have been killed by Werner Kunkel within those three hours, and those three hours alone,” said Bruce Ringstrom, one of Kunkel’s attorneys.
Kunkel has maintained his innocence, arguing he could not have committed the murder because he was in jail when Fassett was last seen alive.
The Brady Violation
The case turned on four documents Kunkel’s attorneys say they did not receive until January 2023, nearly three decades after the trial.
Those documents include:
- A statement from tavern owner Melvin Brodell, who said he spoke with Fassett on Aug. 6, 1986, five days after prosecutors said Fassett was killed and a day after Kunkel was in local jail custody.
- A military order showing National Guardsman Byron Anderson was required to report for duty in Alabama on Aug. 2, 1986, corroborating his earlier statement that he gave Fassett a ride in the early morning hours of that date.
- A federal agent’s memo raising questions about the credibility of two key state witnesses.
- A “while you were out” note indicating a witness had seen Fassett alive on Aug. 6, 1986, contradicting his trial testimony.
“What the documents that were never disclosed show was that there were multiple witnesses who saw Gilbert Fassett alive after that date, as far down the road as August 5th, when Werner Kunkel was in jail on some unrelated charge,” Ringstrom said. “So it was functionally impossible for him to have murdered Gilbert Fassett.”
Kunkel’s trial attorney, Todd Burianek, testified he never received any of the four documents. He called the Brodell statement a “sleeping, smoking gun” and said he did not know if the case would have gone to trial had he seen it.
Ringstrom agreed.
“What the 60-page order said was those four pieces of evidence were absolutely Brady material, and any defense lawyer back in 1995 would have gotten a different result, very likely, had they had that information,” he said.
What Is a Brady Violation?
Under the landmark 1963 U.S. Supreme Court ruling Brady v. Maryland, prosecutors are required to turn over any evidence favorable to the defense, regardless of whether the withholding was intentional.
“Any evidence that would mitigate guilt, any evidence that would be proof of innocence, or any evidence that is what’s called impeachment material, evidence that shows one of the state’s witnesses might be lying or dishonest, that’s constitutionally required to be given to the defense,” Ringstrom said.
Judge Narum found the state suppressed the evidence but stopped short of finding it was done in bad faith.
“The district court judge who ordered the 60-page order made it clear that it doesn’t matter if the non-disclosure was in bad faith or in good faith,” Ringstrom said. “That is to say, it could have been an administrator in the office that simply forgot to put them in. The judge was not saying that the original trial prosecutor did it on purpose he’s not saying he didn’t do it on purpose. He’s simply saying that the fact the trial defense attorney at the time did not have it constitutes a Brady violation.”
