A North Dakota man's murder conviction was overturned. He may now be deported
Werner Kunkel was found guilty of the brutal 1986 murder of Gilbert Fassett.
A complicated case is winding its way through state and federal courts in North Dakota, pitting the two systems against each other over the fate of a man incarcerated for decades who's conviction was recently overturned.
Werner Kunkel spent more than 30 years in prison on a murder conviction that a state court vacated earlier this year. A new trial was ordered, but instead of Kunkel being released, he is now in federal custody facing possible deportation.
Kunkel was found guilty in 1995 for the brutal 1986 murder of Gilbert Fassett, whose body was riddled with more than 100 stab wounds. He was given a life sentence.
But attorneys for the Great North Innocence Project who took up Kunkel’s case found that prosecutors had not disclosed evidence they say could support his innocence. That convinced a district court judge to throw out Kunkel’s conviction in February and order a new trial.
The freedom he expected, however, was not to be.
Kunkel, now 65, was brought to this country from his native Germany at age 7 by his mother. He never became a citizen but has never been back to Germany, doesn’t speak German and has no connection there. Based primarily on his murder conviction, Immigration and Customs Enforcement sought a removal order against him in 1999. Now, even though that murder conviction no longer exists, ICE is pressing its case to deport Kunkel.
Last month, a district court ordered his release from state prison. Hours after his release, ICE agents took him into federal custody where he remains. In a statement to ABC News, the Department of Homeland Security said Kunkel has numerous convictions: forgery, assault on a peace officer and other crimes. Kunkel’s lawyer, Dane DeKrey, told ABC News that the government is using decades old charges to “grasp at straws” for a case they could have made long ago.
"Only now when you're afraid that he might get out and we won the case for the murder is when you bring it up," DeKrey said. "The government knew about [these convictions] for years and years and years, and never once thought that they were so serious that Werner should be deported."
And he was not deported when another removal order was obtained in 2011.
A federal immigration judge recently heard Kunkel’s case and is expected to rule within the month on whether the government can deport him back to a country he’s never known.
But in the same week the federal government was trying to deport Kunkel in immigration court, state prosecutors were trying to keep him imprisoned in North Dakota. They went before the state’s supreme court to argue that the tossed out conviction should be reinstated -- which would likely mean Kunkel’s return to prison.
Deputy Solicitor General Asher Steinberg argued in court that the evidence not shared by prosecutors does not "establish innocence" and that "other evidence of his guilt is overwhelming."
In an interview with ABC News, North Dakota Attorney General Drew Wrigley emphasized that "other evidence" included several witnesses who said Kunkel confessed to the "vicious murder." If the state’s high court says his conviction should be reinstated, Wrigley said Kunkel will return to "where the jury concluded he should be: in jail in North Dakota for the rest of his natural life." And if the court rules Kunkel’s conviction was in fact unjust, "he’ll get his new trial,” Wrigley asserted.
Kunkel now awaits rulings in two courts that will determine his future. If North Dakota’s high court reinstates his conviction, he resumes a life sentence. If his defense wins there, he resumes life in Devil’s Lake, the town he once called home, while awaiting a new trial. And if ICE wins, he potentially starts a new life in an unfamiliar country.
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