DEVILS LAKE, N.D. – At a hearing held via Zoom on the afternoon of Wednesday, Aug. 12, presiding District Judge Theodore Sandberg ordered that Werner Kunkel be released on $25,000 personal recognizance bond to reside in Devils Lake with electronic monitoring while Kunkel awaits the ruling of an appeal from the State Supreme Court, regarding the overturning six months earlier in late February of his 1995 conviction for the 1986 murder of Gilbert Fassett.
The following morning, on Thursday, Aug. 13, Kunkel was taken into federal custody by two ICE agents on a detainer request from U.S. Immigration and Customs Enforcement (ICE), according to Dan Kraft, captain of corrections at Lake Region Law Enforcement Center (LRLEC).
Kraft said that as far as he recalled, the ICE detainer had been in place for years. “As long as he’s been with us, it’s been active.”
This was confirmed via email on Friday, Aug. 14 by Ramsey County State’s Attorney Daniel Howell, acting for the prosecution in the case, who said, “An immigration detainer has been placed upon Mr. Kunkel since January of 2008. I do not believe there was a new or additional detainer issued once his conviction was overturned, but there has been an ICE detainer upon him since then, in some form or fashion.”
According to Howell and information provided by the American Civil Liberties Union, an ICE detainer (or immigration hold) is a formal administrative request from an ICE immigrations officer asking local enforcement agencies (e.g. police, sheriff, local jail) to hold a person for up to 48 extra hours past their scheduled release time so federal agents can take them into custody. It also asks the local facility to contact ICE before the person is released so federal agents can plan a transfer. It is not a court-issued judicial warrant and not mandatory. Local agencies are under no legal requirement to respond to a detainer request and can choose whether to cooperate.
The hearing
During the hearing held via Zoom, Kunkel’s defense attorney James Mayer, legal director of the Great North Innocence Project (GNIP), referred to his client as Werner Rümmer, as he said that was his legal name; on the GNIP website, he is referred to as “Werner Rümmer-Kunkel.”
Howell said in his Aug. 14 e-mail that he believed the defendant had legally changed his name years ago, but for clarity during the hearing he and Judge Sandberg continued to refer to him as Werner Kunkel, the name listed in the case file.
“Werner Rümmer is before the court today, enjoying the presumption of innocence that he was denied for more than three decades of wrongful imprisonment,” Mayer said in his opening statement.
The hearing was held in response to Mayer’s motion under North Dakota Rule 46 to which Mayer clarified, “The rule says that the court shall order the unconditional release of a person charged with an offense unless … unless the court makes a determination that unconditional release is not sufficient to secure that person’s attendance at future court proceedings, in this case, a future hypothetical retrial.”
Mayer posed the question of whether the state has presented anything that would justify Kunkel’s continued incarceration at the LRLEC correctional facility, and whether the court will impose conditions on his pretrial release.
Mayer highlighted the February ruling by Judge Daniel Narum of the Southeast District which overturned his conviction, in which Kunkel’s legal team alleged that evidence from the original trial had been suppressed, including witness statements that claim Fassett was still alive past the date the state said he had been killed, as well as newly presented forensic evidence that cast doubt on Kunkel’s guilt.
Mayer argued that, since his incarceration, Kunkel has not had any disciplinary issues for many years and has behaved well. “Werner has one write-up for a scuffle,” he said. “He has no other write-ups like that. He’s not out there fighting with inmates, fighting with prison staff.”
Mayer also contended that his criminal history, which the state argues is still relevant, was many years ago. “The state identifies three convictions, three class C felony convictions, the most recent of which is 35 years ago and the oldest of which is a reckless endangerment conviction from January 1983, when I was seven years old,” Mayer said. “With all due respect to my client who’s listening to me argue this motion, this is not the same robust, strong young man who was charged with this crime back in the ‘90s. This is a much older man in poor health.”
Mayer cited Kunkel’s growing health challenges, including chronic back problems and subsequent surgery that had confined him to a wheelchair for a time before his current use of a cane, as well as kidney disease, diabetes and hypertension.
He also mentioned the mental anguish of being incarcerated for decades. “The amazing thing really is when you focus on the last six months, because in February of this year, after serving those three decades in prison, Werner finally got what he’d been dreaming of all this time, which is an order vindicating him,” Mayer said. “Yet there he sits in his orange jumpsuit, still incarcerated.”
Mayer noted that nowhere in the state’s argument against Kunkel’s release was there any evidence indicating that Kunkel poses a flight risk, would not appear for court proceedings, or has a history of no-shows for court dates. “They can’t make such an argument, because it wouldn’t be supported by the record,” Mayer said.
Mayer observed that Kunkel has significant ties to the community. “Devils Lake is Werner Rümmer’s home,” he said. “He was brought here to that community as a child. He grew up there. His family is there. His supporters are there. His brother Mike, his sister Sylvia have supported him throughout this unbelievable ordeal. They’ve supported him and stood by him, and they stand by him today, and we all should be so lucky to have siblings like that.”
Mayer pointed out that Kunkel had others in his support system, including his team of lawyers and reentry specialists, covering everything from transportation to medical and dental care and everything in between. “In terms of where he’s going to go and what he’s going to do, that planning is underway to make sure that there is a smooth transition to life in society,” he said.
Mayer also questioned if a new trial is even likely for the 40-year-old murder of Fassett, citing a story by this reporter for the Devils Lake Journal published on March 3, in which Howell admitted that his options were limited, regarding a new trial. “Without any physical evidence or witnesses that are still alive and remember these days, I don’t know that a trial’s very likely at this point,” Howell said on March 2.
“I bring that up not as a gotcha or as a criticism of Mr. Howell, quite the opposite,” Mayer said. “I think that’s simply a truthful and candid assessment of the state of the case, given the weakness of the state’s evidence, the lack of physical evidence, the problems with the state’s case that were identified at the post-conviction hearing, and the fact that we are 40 years along from this crime.”
Mayer added that the most important detail regarding release is that Kunkel would have a place to live. “Not 10 minutes away from the jail that Werner Rümmer is sitting in right now, there is a modest house with a single woman living in it,” he said. “Her name is Marita Lien … and she’s there as we speak, and she is waiting for her son to come home and take care of her.”
Sandberg then allowed Howell to make his argument for the prosecution. “Mr. Mayer conveniently, or strategically, minimizes the fact that Mr. Kunkel still has a valid ICE detainer … that is still pending upon him,” Howell said. “Even if the court was to release him upon his own personal recognizance today with no conditions, he would go into federal custody,”
Howell added that even without his conviction for murder, Kunkel still has three C felonies on his record. “He still has violent convictions in his history and there’s still a high likelihood in the state’s opinion that he will be deported and be unavailable should there be any further actions in this matter.”
This prompted the response of an unidentified Zoom participant attending the hearing who said, “That is not true.”
Sandberg quickly determined that the unexpected retort was not from Kunkel, as he was looking at the defendant when it happened. Sandberg then issued a stern warning to all participants in the Zoom call. “This is an admonishment to anybody here who is listening,” he said. “I would please ask anybody who is not the lawyers or Mr. Kunkel to please mute your microphone. If you have chosen not to mute your microphone, that’s OK, but then you cannot blurt out or make comments while the hearing is going on. It’s interruptive of the attorneys making their points. It’s interruptive of the judge hearing these arguments, and ultimately, no matter where you lie on this particular case, it’s not likely to assist in any way, shape or form.”
The judge added if there were any more outbursts, the responsible party would be found and removed from the proceeding. Apologizing to Howell on behalf of the court, Sandberg asked him to continue. Taking a moment to collect himself before continuing, Howell noted in his conversations with ICE agents and the Department of Homeland Security, that there is still an intention to move forward with his deportation. “The fact remains that Mr. Kunkel is not a U.S. citizen, he is a German citizen,” he said.
While allowing for the possibility that Kunkel might remain in the U.S., if the deportation order were to be withdrawn under some provision of immigration law, Howell said, “The fact remains that he will not be returning to this community should he be released today. Should he be released at any time in the near future, he will go in federal custody. So, while it is good that he has a community that will be welcoming him back, he has support systems, those support systems don’t factor into what happens next for Mr. Kunkel. He will go directly from incarceration here to incarceration with the federal government.”
Howell surmised that Kunkel would likely not be held very far away, but somewhere in the Midwest near North Dakota. “The state will then have to keep tabs, and there are writs that we can do, should the court order his release, to have him delivered back for future hearings in this matter, or should the North Dakota Supreme Court overrule Judge Narum’s post-conviction relief order to return him back to custody on the murder conviction.”
While Howell agreed that Kunkel has not had any further convictions, violent or otherwise since his 30-year incarceration, Howell argued against Mayer’s assertion that Kunkel was no longer a danger to the community, based on his past convictions which included shooting a weapon at what he believed to be a state trooper’s home in retaliation for that trooper’s actions while on duty that involved Kunkel, drawing a correlation that he could act on other grievances. “Mr. Kunkel might hold a grudge against individuals who participated in his conviction,” Howell said.
Responding to Mayer’s assertions that Kunkel is in failing health, Howell argued that no evidence was presented in the form of testimony, affidavits or other information to indicate that the defendant was not receiving adequate medical care while at LRLEC, citing specific times in the past few months on June 21 and July 14. “When Mr. Kunkel has brought his concerns about his medical situation to the attention of the Law Enforcement Center, they have made allowances and had him transported to the hospital,” Howell said. “He has been seen by medical professionals beyond the nurse at the Law Enforcement Center who monitors his health while in the facility.”
Howell added that if Kunkel were to be taken into federal custody, there was no guarantee that his quality of care would remain the same. “He may be better off in the Lake Region Law Enforcement Center with the established medical care that he has already received here,” he said. “He has doctors here. He’s been seen by professionals. He will have to start over. He will have to comply or contend with federal red tape in seeking further medical treatment.”
Regarding whether incarceration had taken a toll on Kunkel’s physical or mental health, Howell said that could apply to any inmate in a correctional facility. “I believe that opens the door for a very slippery slope, and could have, if applied across the board for all defendants … some far-reaching consequences.”
Howell said that parties had earlier stipulated to a no bond order with the express understanding that there would likely be a later argument for release. Although Howell preferred that the no bond order remain in place to maintain the status quo to allow the State Supreme Court time to rule on the appeal, which he said was scheduled for Sept. 10, he offered an alternative. “If a no bond order is untenable to the court, the state would ask that the original bond set in the murder charge case of $300,000 cash be imposed upon the defendant.”
Before ruling, Sandberg observed that district courts are limited in their actions while a case is on appeal. “I haven’t found a whole lot that allows the court to do much on a criminal case while it’s on appeal,” he said. “This is, of course, as Mr. Mayer and Mr. Howell have both said, a very unique case, and so I’m not surprised that I didn’t see a whole lot in the North Dakota case law.”
Sandberg noted that Narum didn’t grant a stay on his ruling to overturn the original murder conviction, nor was one requested from the State Supreme Court. “Is the mere basis of an appeal enough to de facto create a stay?” he asked. “Almost always, it does on almost all issues. … I’m more concerned right now with the question of jurisdiction, and does this court have any jurisdiction to deal with the housing of Mr. Kunkel while this case is in front of me?”
Sandberg presumed that the State Supreme Court currently held all jurisdiction during the appeal process, but asked the lawyers of both sides for clarification of his jurisdictional standing that would allow him to make a ruling on this case. “Because I’ve looked through the case law, and I don’t see any case law that says I can, but I don’t see any that I can’t either,” he said.
When called upon by Sandberg, Mayer said, “I don’t think the court has any choice but to act. … We routinely go to a bond hearing while an appeal is pending after a conviction is vacated.”
Mayer added that the only vacated conviction in North Dakota that came to his mind was GNIP’s case of Cassandra Black Elk from Burleigh County. “In that case, the conviction was vacated, and she was almost immediately released on bond, but the appeal went forward, and it ended up being affirmed by the North Dakota Supreme Court,” he said.
“There is not a valid conviction and the order overturning that conviction has not been stayed,” Mayer said of his client. “Mr. Rümmer is like anyone else who’s facing charges, but who’s presumed innocent and doesn’t have a valid conviction. He has an absolute right to consideration of pretrial release, and it would be appropriate in this case.”
When Sandberg turned to Howell for a response to his query about jurisdiction, Howell reiterated that this was a unique case, one further complicated by Kunkel’s immigration status. “If Mr. Kunkel was a U.S. citizen and would be returning to the community, I would not have a very good argument at all … for him to stay in custody,” he said. “All of his history is 30-plus years old. He does not have a violent history while incarcerated. But the situation with immigration, and should the court make a decision upon this motion today, releasing Mr. Kunkel, he would automatically be removed from the jurisdiction, and that has great concern for the state.”
Sandberg observed during his ruling that with the appeal coming up in September, Kunkel would either be in custody or on bond. “If the state does not prevail on that appeal, however, Mr. Kunkel will have spent a significant amount of extra time in a county jail, much to his detriment,” Sandberg said. “So, I start to look at this and say, well, the state really isn’t losing a whole lot if Mr. Kunkel gets some sort of reasonable release or bond, but Mr. Kunkel is certainly losing a tremendous amount if he ultimately wins that appeal.”
Sandberg then spoke to the concerns regarding the ICE detainer request. “The question of any kind of ICE hold, or any kind of government hold for any reason, those holds are not holds by the state of North Dakota,” he said. “If the federal government has actions they wish to take against Mr. Kunkel, then they’ll take those actions. If those actions result in things that happen to Mr. Kunkel, well that’s the federal jurisdiction. I don’t have the jurisdiction to say yes, no or otherwise … any more than I would have for extradition to another state or another country.”
“Those are all outside of this courthouse, outside of this case,” Sandberg added. “If there are ICE issues, I’ll put it quite blankly: I don’t care. They have nothing to do with this case. Nothing to do with determination of bond. If I put somebody on bond and there is another detention or federal detention that sweeps in and picks them up, well, that’s what the federal detention does. … I don’t have any control to say, well, I’m going to keep you locked up to, what, prevent you from going into federal custody? I don’t think that there’s anything in North Dakota law that says a district court should do that, to say, well, I’m going to lock you up to make sure the feds don’t get you.”
Sandberg stressed that his complete and utter focus was what he characterized as a “North Dakota case,” and felt that detaining someone at LRLEC merely to forestall federal action was probably unethical from his perspective as a judge.
“With regards to Mr. Kunkel’s criminal history, the one most severe case has been vacated and set for a new trial,” Sandberg continued. “All of the other charges that this man has racked up are 35 or so years old. That’s quite an old criminal history. It’s a serious criminal history. It’s a problematic criminal history. I don’t doubt in no small way, that criminal history is what made him, at a bare minimum, a suspect in the murder case to begin with.”
Sandberg noted that all people change as they grow older, as well as Kunkel’s health issues. “He’s matured, I would hope, quite a bit in 35 years, and frankly, if he was a particularly violent and nasty person down deep in his soul, (as) he may have been in his youth, I think that might be reflected in some prison records since then and Mr. Mayer is very proper and very correct to point that out,” he said. “Because people don’t just change their stripes when they go to prison. In fact, usually their worst instincts usually come to the fore because sometimes prison is a place where your worst instincts actually are the ones that get you things that other people can’t get, which is leadership positions and get special treatment amongst the inmates and such.”
Sandberg observed that Kunkel’s record indicated no gang affiliation, there were no visible prison tattoos, and while he was likely a very violent person based on his previous convictions when first incarcerated, Sandberg said, “We’ve got nothing in the prison system that shows that he’s continued to be that type of person at all.”
Sandberg also felt that age and serious health issues were factors in considering bond. While LRLEC may provide adequate medical care, Kunkel was likely low on their list of priorities, and that there was really no substitute for someone being able to doctor himself in his own home, as well as controlling his own dietary and medical care routines.
“Somebody who is detoxing from methamphetamine, for instance, is going to require more medical intervention than making sure that Mr. Kunkel is getting a salt-free lunch,” Sandberg said. “These, again, are not negative criticisms of the correctional center. It’s just a fact of life. When you’re breaking up fights and when you’re trying to make sure drugs aren’t getting smuggled in and you have various people going through various psychological issues, drug issues, drama issues, violence issues, it doesn’t surprise me that Mr. Kunkel, his medical kite is probably every single day pushed to the back of the line, and that’s just the nature of a county jail.”
Sandberg noted that many bond hearings he’s presided over involve defendants who live outside of the community where they’re incarcerated, with home addresses located as far away as Denver, Colo., or Boise, Idaho, or as close at Dickinson, whereas Kunkel would have family and a place to live in Devils Lake. “I think that’s about as good as you can ask for,” Sandberg said, adding that he recalled approving Kunkel’s transfer to LRLEC, and the fact that he plans to live in his family home in Devils Lake indicated that the potential flight risk is extremely low.
Sandberg also agreed with both attorneys that the likelihood of a successful retrial was low. “We’d be looking at 35 years’ worth of lost evidence, of missing evidence, lost witnesses, lost testimony, not to mention all of the problems that occurred in the trial to begin with.”
Sandberg acknowledged that with Kunkel’s three other previous criminal convictions, he had once posed “a real problem” to the community, which Sandberg was taking into consideration. With that in mind, the judge placed Kunkel on a $25,000 personal recognizance bond, which in North Dakota allows someone under arrest to be released from jail without paying cash bail. The defendant signs a written promise to return for all future court dates.
As a condition of bond, Sandberg ruled that Kunkel would have to submit to electronic monitoring administered through the Lake Region Community Service Program at LRLEC and live at his mother’s address. Kunkel was also ordered to not leave Ramsey County, except for medical emergencies, and in no case be able to leave the state of North Dakota, even for medical emergencies. “If there are federal agencies that have dealings with him, then those federal agencies will have to deal with that bond order as they wish and get whatever orders they wish from their own magistrates, and let those chips fall where they may.”
Sandberg clarified that if Kunkel was taken into federal custody outside North Dakota, it would not be considered a violation. “Now, I will tell you that if ICE picks him up, moves him down to St. Paul, processes him, and then releases him, and he doesn’t come back from St. Paul willingly, then we are going to have a big problem,” he said.
There was another brief interruption as another Zoom participant was heard conversing with someone at their location. “Whoever’s speaking needs to stop,” Sandberg said, wherein someone on a blank screen quickly muted their microphone.
Sandberg then reiterated to Kunkel the conditions of his bond, and said, “You should be aware that if you don’t return, not only are you in significantly more trouble, but then you will owe 25,000 additional dollars to the court. You understand that?”
Kunkel said that he did.
Sandberg also told Kunkel that if he was taken into federal custody and moved outside North Dakota, then released, Kunkel would need to return directly. “It is your obligation to immediately return to Ramsey County and immediately re-hook up on the electronic monitoring.”
Sandberg then scheduled a status conference in 90 days before adjourning the hearing.
As predicted by Howell, Kunkel was taken into federal custody the following morning. According to the official ICE website’s locator page, he’s currently being held at the Grand Forks Correctional Center. Howell confirmed that location but was unsure if he will remain there or perhaps be moved to a different location.
“I believe ICE can hold him until a final determination is made in his case, whether that be deportation or release back into the community,” Howell said via email. “There is always a possibility that he is released on bond similar to the murder charges.”