Possible suspect failed polygraph, but never was charged in connection with Gilbert Fassett’s murder (2024)

Editor's note: This story is part two of an eight-part series examining the killings of Gilbert Fassett and Eddie Peltier on the Spirit Lake Nation in North Dakota. Veteran reporter Patrick Springer examines both cases andconsiders a sobering question: Were the men convicted of these murders guilty?

DEVILS LAKE, N.D. — Werner Kunkel gave little thought to doing a favor that turned out to be one of the most fateful decisions of his life. He gave a friend a ride.

Kunkel got to know Gilbert Fassett the year before when both were inmates at the North Dakota State Penitentiary. Fassett, who didn’t have a car, depended on others to get around.

The pair ended up at the Sportsman’s Den, a bar, bait shop and convenience store, where they drank and played a dice game, 6-5-4, to decide who bought the round.

A bartender would testify later that Fassett, who had a roll of cash, seemed to be the one paying for the drinks.

The two men got into what a bar patron later described to jurors as a “friendly argument” over a dice game.

As the night of Aug. 1, 1986, wore on, Fassett became a nuisance and caused a disturbance in the bar’s adjoining convenience store.

“He was just — when he gets drunk, he just gets wild I guess,” the clerk, Kelly Bednarz, testified later. After entering the store from the bar “he started screwing around, knocking stuff down and getting obnoxious.”

The sky was darkening when Bednarz kicked Fassett out, and Kunkel left with him. Fassett wanted to visit his foster parents near Tokio on the Spirit Lake Indian Reservation, and Kunkel obliged by driving him there.

Patrick Springer / The Forum

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The two men arrived at the home of William and Gertrude Cavanaugh around 9 p.m. Fassett introduced Kunkel as a buddy. Gertrude arrived about an hour later after playing bingo in nearby St. Michael.

Kunkel appeared nervous, the Cavanaughs said. He paced the floor and declined invitations to take a seat as Fassett sat on the couch talking to the Cavanaughs.

“Come on, Gilbert. Let’s go,” Gertrude testified, recalling Kunkel’s impatience. “We have an appointment at 10:30. Let’s go,” a phrase she said he repeated many times. Fassett replied, “Can’t I visit my mother and dad? Sit down and wait.”

The pair left at 10:30 or 11 p.m. Before they left, William Cavanaugh gave Fassett $5. The Cavanaughs were the last witnesses who saw Fassett alive.

Kunkel told investigators that Fassett had wanted to be driven to Grand Forks, but Kunkel refused, instead driving him to a house in Devils Lake where Fassett was flopping with friends, estimating that he dropped Fassett off between 11 p.m. and midnight.

Nobody staying at the house, however, could recall seeing Fassett late that night or early the next morning.

Early on the morning of Aug. 4, 1986, Kunkel and his girlfriend, Tammy Schempp, left Devils Lake for Dickinson, where Kunkel planned to enroll at Dickinson State University.

Along the way, they stopped in Minot. They resumed the trip, but took a wrong turn and ended up close to the Canadian border, so they turned around and returned to Minot.

On the spur of the moment, Schempp suggested they should get married. They went to the courthouse and were married by a judge, with one of the witnesses from a bar, the other the judge’s secretary.

Kunkel called his mother to ask for help in paying for a motel room. Excited to learn of the wedding, she invited the newlyweds to come to her home to celebrate.

In the wee hours the following morning, the party got rowdy and police were called to the home. Kunkel wound up getting into an altercation with a Devils Lake police officer, Pete Belgarde, and was arrested for assault.

Kunkel remained in jail on the assault charge from the morning of Aug. 5 until Aug. 19.

A week after his release, Belgarde and James Yankton, a BIA police officer from the Spirit Lake Nation, contacted Kunkel.

They wanted to question him about Gilbert Fassett, whose body had been found Aug. 10.

Kunkel drove to the Lake Region Law Enforcement Center in Devils Lake and sat for a two-hour interview, recounting his whereabouts beginning on Aug. 1, when Fassett was last seen alive.

Contributed

After dropping Fassett off at the house where he was staying, Kunkel continued to drive around Devils Lake.

He picked up a 15-year-old girl, stopping at a drive-through liquor store to buy a bottle of gin, then headed to his mother’s house in the Acorn Ridge subdivision south of Devils Lake.

On the way there, at 1:13 a.m. Aug. 2, he was stopped by a Highway Patrol officer and given a warning for crossing the centerline. The officer, who had a flashlight, peered inside the car and would testify later that he noticed nothing unusual — no blood, no cuts or scrapes on Kunkel, no unusual odors.

Kunkel and his passenger then drove to the Mission Bay Store to buy soda pop to mix with his gin, then he drove the girl home to her apartment, where her mother returned around 4 or 5 a.m. The girl and her mother cooked a breakfast of eggs and hashbrowns, and Kunkel fell asleep on the couch, according to testimony the girl gave later, and left around 9 a.m.

The three days leading up to Kunkel’s arrest at his wedding party were filled with a mixture of drinking with friends — Kunkel was always looking for the next party — and taking care of tasks.

The afternoon and night of Aug. 2 and the following day, Kunkel went to the Sportsman’s Den, where he met Schempp. The next day he helped his sister and brother-in-law move, followed by a barbecue celebration.

Kunkel had witnesses who could vouch for his whereabouts for much of the time between Aug. 1 and Aug. 4, but some gaps remained.

Years later, after Kunkel was charged and then convicted of murdering Fassett in 1995, it would dawn on him that a critical time period for which he had no alibi witnesses could be used against him — a gap that was contained in the statement he gave to Yankton and Belgarde.

Also, Kunkel said that whenever asked, he freely discussed his contacts with Fassett on the day Fassett was last seen alive as well as his comings and goings during that period. He did so, he said, because he had nothing to hide — but in doing so important details became known in his social circle.

Investigators tracked down numerous leads of suspects in Fassett’s murder, with the trail leading far and wide, including South Dakota and Minnesota.

Because it wasn’t clear where the murder occurred — on the reservation, where federal authorities have jurisdiction, or off it — federal, state and local law enforcement agencies worked together on the investigation.

One of the most concrete leads provided to investigators, and one of the earliest, came from Fassett’s mother, Mary Louise Simonson, whom Belgarde interviewed.

She’d heard from two women that a police officer, whose name wasn’t included in Belgarde’s report, was seen in an altercation with Fassett along Skyline Drive at Ski Jump Hill days before his body was discovered there.

Belgarde interviewed one of the women, who said a man named Curtis Posey had revealed information about the confrontation during a party at his house, saying he and three others were present.

Belgarde’s report said “somebody” kicked Fassett, then shot him in the head, but Posey wouldn’t reveal the names of others present. “Then Gilbert fell after being shot in the head, then Curtis ran over to Gilbert to check on him,” Belgarde’s report said. “Then the cop grabbed Curtis and told him (Curtis) to take off running. You are going to get it next.”

Contributed

Investigators didn’t get around to interviewing Posey until October, two months after getting the lead, when FBI Special Agent Spencer Hellekson questioned him.

“He was extremely nervous even though writer did not know time of death at time of interview,” Hellekson wrote in his report. “Posey has furnished three alibis which were proven not to be true.”

In the same report, Hellekson wrote that witnesses were afraid of Kunkel, whom he called a “well-known violent drug dealer.”

A couple of weeks later, Posey was given a polygraph examination to evaluate his truthfulness. He was asked about his whereabouts on Aug. 1, the last day Fassett was seen alive.

“Posey gave three stories where he was that day,” according to the report of the polygraph exam.

Posey answered “no” to four ”relevant” questions: “Were you physically present when Gilbert was killed? Did you cause Gilbert’s death? Other than those rumors, do you know who is responsible for Gilbert’s death? Are you purposely withholding any important information from me about Gilbert’s death?”

In his report conclusion, the FBI examiner wrote, “It is the opinion of this examiner that the recorded responses are indicative of deception.”

Confronted with those indications, Posey responded, “No way, I couldn’t kill a cat. I’m telling the truth.”

Posey — whom Kunkel’s lawyer subpoenaed to testify at the murder trial but couldn’t be found — has a lengthy criminal record, with charges including carrying a concealed weapon, making false reports to law enforcement, criminal trespass and assaulting a peace officer.

“I would have loved to have had Curtis Posey in this courtroom during that trial,” Todd Burianek, Kunkel’s trial lawyer, testified later in an appeal hearing. “I would have loved to have asked him questions about this case.”

Burianek added that he believed “Posey had something to do with the death of the victim. Or had seen it or heard about it. Something.”

Eric Hylden / Grand Forks Herald

Posey’s brother, John, was with a group of several people who stopped at the scenic overlook on Ski Jump Hill on Aug. 6, four days before Fassett’s body was found. John Posey picked chokecherries and found a blue denim jacket, according to an investigation report — a jacket Kunkel’s lawyer believed might have belonged to Fassett.

In the months and years to come, the investigation into Fassett’s murder faltered, failing to result in any concrete leads that would support charging anyone.

The FBI closed its investigation by 1991. Then, in 1992, new information came into investigators’ hands — a statement that implicated Kunkel as the murderer.