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

DEVILS LAKE, N.D. — Maggots scraped from the badly decomposed corpse of Gilbert Fassett were “silent witnesses” that were crucial in determining the time of his murder.

Omer Larson, a zoology professor and parasitologist at the University of North Dakota, was hired by prosecutors to analyze the maggots to estimate Fassett's time of death.

Larson concluded that Fassett had been killed on August 1, 1986 – the last day he was seen alive.

This discovery had devastating consequences for Werner Kunkel, the last person known to have been with Fassett, an acquaintance he had picked up that day.

Kunkel was convicted of Fassett's murder in 1995. The case was largely circumstantial and relied heavily on testimony from witnesses who claimed that Kunkel confessed to the murder.

Kunkel's attorney did not challenge the forensic entomological evidence—dismissing it as “fuzzy science”—although the unchallenged time of death significantly hampered the defense by leaving a short, critical period for which Kunkel could not provide any alibi witnesses.

The reliability of Larson's forensic entomological evidence was one of the main issues in a 2005 appeal that called for a retrial for the plaintiff. After the trial, Kunkel changed his last name to Ruemmler.

The appeal noted that the estimated date of death of August 1, based on the development of the maggots found on Fassett's body, was virtually consistent with the prosecution's theory that Fassett was murdered shortly after he was last seen with Ruemmler that day.

The appeal filed by Douglas Broden states that Rümmer was not adequately advised in his murder trial because neither the forensic entomological evidence nor the qualifications of the expert witness were questioned.

“…in this case, establishing the time of death was extremely important because Mr. Rümmer has an alibi for all times except the time at which the State falsely claims death occurred,” Broden wrote in his brief. “Because the accuracy of this expert opinion was not fully investigated, the possibility of an alibi defense was precluded.”

Ruemmler's trial attorney, Todd Burianek, testified at the appeal hearing that he did not believe Larson's testimony was significant because it came from “a UND professor who looks at insects in his spare time. I just didn't think it would be that significant given all the other evidence in this case.”

Burianek said he did not want to “legitimize” Larson's opinion by limiting himself to his testimony. “Look,” he said, recalling his thoughts during the trial, “there is no conviction in this case based on the testimony of a pest control operator.”

Rather, the outcome of the trial depends on the statements of the witnesses who claimed that Rümmer had confessed to the murder.

For the appeal, Broden hired Neal Haskell as an expert for the defense to examine the maggots and thus determine the time of Fassett's death.

Haskell is a certified entomologist by the Entomological Society of America and a diplomate of the American Board of Forensic Entomology who has testified as an expert in hundreds of criminal trials. As of 2005, he said he had performed forensic entomological analysis in 1,700 cases.

In contrast, Larson, the prosecution witness, was not a forensic entomologist and should not have been recognized as an expert in the field, Broden argued. Larson testified that he had been subpoenaed by police three times before the Fassett murder case, the first time he had been able to give his opinion.

Haskell came to a different conclusion about Fassett's death. He concluded that death occurred between sunrise on August 3 and sunset on August 6.

Fassett's badly decomposed body was found on August 10. The pathologist who performed the autopsy on August 11 estimated that Fassett had been dead for at least seven or eight days based on the condition of the body.

In Haskell's opinion, it was impossible that Fassett died before sunset on August 2. Haskell, who said he has examined “hundreds of thousands of specimens,” said Larson did not meet the standards of a board-certified forensic entomologist.

In his estimate, Haskell used the life cycle of blowflies, which lay their eggs on dead bodies. Depending on the temperature, blowfly eggs hatch within a few hours in warm weather and within a few days in cold weather.

The eggs then develop and reach the larval stage.

Haskell used hourly weather conditions for Devils Lake from the National Weather Service to calculate the “energy units” available to the developing larvae.

Larson used weather information from a local radio station that was broadcast every six hours, but this was not precise enough to make a reliable estimate of Fassett's time of death, Haskett testified.

In addition, Larson's calculation errors were reported, which led to an inaccurate timescale of maggot development, which in turn led to his estimated time of death on August 1 being too early, Haskell said.

“I think the age of the larvae was overestimated and the available energy units were underestimated,” Haskell testified at the hearing. “I think if you put the two analyses on the same scale with the same factors, the August 1 period would certainly have been shortened,” to a date between sunrise on August 3 and sunset on August 6.

In his testimony, Larson acknowledged that he had initially misidentified the insect species, confusing blowfly larvae with screwworm larvae. He realized this error nine years after his investigation, when the FBI asked him to revisit his findings before Kunkel's trial in 1995.

Contribution by / University of Nebraska Lincoln

Larson also said he did not ask the pathologist for live maggots so they could mature for positive identification.

The North Dakota Supreme Court dismissed the appeal, including the argument that trial counsel's failure to examine the scientific evidence constituted inadequate advice. Appellate courts are reluctant to second-guess a trial lawyer's strategy, the justices wrote.

“From our review of the record, we conclude that Ruemmler's trial counsel's representation did not meet an objective standard of reasonableness and Ruemmler simply failed to demonstrate that the testimony of any of his proposed additional witnesses would have changed the outcome of his criminal trial,” Judge Mary Maring wrote. “Ruemmler was not prejudiced by his counsel's allegedly inadequate performance, and he failed to demonstrate inadequate legal assistance due to a lack of investigation.”

In an interview with The Forum, Haskell said that Larson's estimate of Fassett's death, which placed it on a single day, was not scientifically reliable.

“You can't just take a day and say that's it,” he said. “You need a range. There has to be a lower limit and an upper limit” to account for the variability of conditions.

Given the importance of the time of death in this case, Rümmer was denied a fair trial, Haskell said. In addition, the pathologist who performed the autopsy, Dr. Roel Gallo, had only performed about 120 autopsies and was still in training. There was no indication that he had any experience with autopsies on badly decomposed bodies, Haskell said.

“He should not have been convicted,” Haskell said, referring to Rümmer. “Under no circumstances should he have been convicted.”

Because Ruemmler's defense attorney did not challenge the evidence regarding Fassett's time of death, Ruemmler had no alibi. His trial attorney focused on the passage of time, arguing that Ruemmler did not have enough time to do all the things the prosecution accused him of doing: commit the murder, move the body, clean up, and dispose of evidence.

Witnesses last saw Fassett when he and Kunkel left Fassett's stepparents' home around 10:30 p.m. on August 1. Kunkel told investigators he dropped Fassett off at a house where he was staying with friends between 11 p.m. and midnight.

He drove around Devils Lake and picked up a girl around midnight, which the girl confirmed in her court testimony. She said Kunkel seemed calm and she did not see any scratches, scrapes or blood on him.

A highway patrol officer stopped Kunkel south of Devils Lake at 1:13 a.m. on August 2 and issued him a warning. The officer testified that he did not see any blood on Kunkel or his car – which prosecutors say Kunkel used to transport Fassett's body – and did not see any scratches or bruises on Kunkel.

Article / Devils Lake Journal

This means that Kunkel would have had between an hour and a half and less than two and a half hours to murder Fassett and drive the body about 10 miles from Devils Lake (where prosecutors say the murder took place) (about a 15-minute drive) to the ski jump hill on the reservation where the body was found.

During those approximately 90 to 165 minutes, Kunkel would have had to load and unload the body, then drag it 25 feet down the slope in the dark, wash the blood off himself and his car, and dispose of his bloody clothes and the knife used to kill Fassett, which was never found, his lawyer argued.