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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
But attorneys for the Great North Innocence Project who took up Kunkel\u2019s case found that prosecutors had not disclosed evidence they say could support his innocence. That convinced a district court judge to throw out Kunkel\u2019s conviction in February and order a new trial.<\/p>\n
![\"PHOTO:](\"https:\/\/i.abcnewsfe.com\/a\/3c1db2f6-e465-48c4-b4f4-878935ac59c0\/werner-kunkel-ht-jef-260911_1789133333699_hpMain.jpg?w=375 "\\"Asher")
<\/picture><\/div>\n<\/div>Werner Kunkel seen here in this undated photo with Law Clerk Lizzie Harrop. Attorneys for the Great North Innocence Project took up Werner Kunkel’s case and found that prosecutors had suppressed evidence supporting his innocence.<\/span><\/span><\/span><\/p>\n Great North Innocence Project<\/span><\/p>\n<\/div>\n<\/figcaption><\/figure>\n<\/div>\n<\/div>\n<\/div>\n The freedom he expected, however, was not to be.<\/p>\n 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\u2019t 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.<\/p>\n 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\u2019s lawyer, Dane DeKrey, told ABC News that the government is using decades old charges to \u201cgrasp at straws\u201d for a case they could have made long ago.<\/p>\n “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.”<\/p>\n And he was not deported when another removal order was obtained in 2011.<\/p>\n A federal immigration judge recently heard Kunkel\u2019s case and is expected to rule within the month on whether the government can deport him back to a country he\u2019s never known.<\/p>\n 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.\u00a0They went before the state\u2019s supreme court to argue that the tossed out conviction should be reinstated — which would likely mean Kunkel\u2019s return to prison.<\/p>\n 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.”<\/p>\n 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\u2019s 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\u2019s conviction was in fact unjust, “he\u2019ll get his new trial,\u201d Wrigley asserted.<\/p>\n Kunkel now awaits rulings in two courts that will determine his future. If North Dakota\u2019s high court reinstates his conviction, he resumes a life sentence. If his defense wins there, he resumes life in Devil\u2019s 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.<\/p>\n<\/div>\n