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Published November 03 2012

FROM THE ARCHIVE: Sex assault trial of Fargo surgeon starts Monday

FARGO – In the end, it all comes down to consent.

Did Fargo surgeon Jon Norberg drug his wife against her will with the powerful painkiller propofol and commit sex acts on her while she was unconscious?

Or, as he claims, did she ask him to administer the drug to treat her pain from an autoimmune disease and willingly have sex with him?

Jurors will begin to hear the case this week as Norberg’s trial – scheduled to last until Thanksgiving – gets under way in Cass County District Court.

Sixty candidates are expected to report for jury selection Monday morning.

Judge Douglas Herman said Friday he hopes to have the panel of 12 jurors and two alternates seated by noon Tuesday.

It will be the first trial in the new $14.7 million addition to the Cass County Courthouse.

Preparations were being made Friday, as workers showed up to install a plaque of the North Dakota State Seal in the spacious third-floor courtroom. During a hearing on final trial motions, Herman and attorneys discussed the courtroom’s camera system and exhibit displays.

“We want to present this trial in an orderly fashion,” Herman said.

The trial may come off cleanly, but the case has been anything but.

The criminal case runs parallel to the Norbergs’ divorce case, filed in civil court by Alonna Norberg on July 8, 2011. Four weeks later, prosecutors filed criminal charges of gross sexual imposition and reckless endangerment against Jon Norberg.

To avoid the risk of trial, Jon Norberg, an orthopedic surgeon, pleaded no contest on Jan. 3 to the reckless endangerment charge and a reduced misdemeanor charge of sexual assault. But he withdrew the pleas after it became apparent they would affect the divorce case, which is set for trial on Jan. 14.

During a hearing in May, Jon Norberg’s attorney, Robert Hoy, highlighted that on the night Alonna Norberg claims her husband first raped her, she had met with a divorce lawyer for the first time earlier in the day.

Hoy, in one of the case’s more memorable quotes to date, told the judge the case was “trumped up to gain some leverage or advantage” for Alonna Norberg in her divorce and child custody case against her husband.

Assistant State’s Attorney Gary Euren countered with a list of evidence the state has against Jon Norberg, including a tape-recorded conversation between the couple in which Jon Norberg allegedly acknowledged they had sex when his wife was on propofol, a powerful sedative that gained notoriety during the trial of Conrad Murray, the doctor who treated pop star Michael Jackson before his death.

Herman has ruled to exclude mentions of high-profile propofol cases such as Murray’s from the trial.

But a witness from Murray’s trial may testify at Norberg’s trial.

The prosecution in August informed the court, under seal, that it plans to call an expert witness on propofol and sevoflurane, an ether-like drug that Norberg allegedly used to render his wife unconscious and sexually assault her. A bottle of sevoflurane and an open case of Diprivan – a brand name for propofol – were seized from one of two safes in the home when a search warrant was served.

During Friday’s hearing, Herman and Hoy both referred to an expert witness on propofol as Dr. Shafer, and Herman indicated he was coming from California.

Dr. Steven Shafer, a propofol expert and adjunct professor of anesthesiology at Stanford University, was the final prosecution witness in Murray’s trial.

As of two weeks ago, the state had 58 possible witnesses lined up to testify. Among those listed on the charging document are Alonna Norberg, Fargo police detectives and Charles “Chuck” Anderson, a private investigator hired by Alonna Norberg’s divorce attorney.

One witness in the case, Fargo attorney Michael Gjesdahl, who served as custody investigator in the Norbergs’ divorce case, went all the way to the North Dakota Supreme Court in an attempt to get out of testifying. Last month, the high court upheld Herman’s order that Gjesdahl must testify – an order Herman made reluctantly, saying it could set a “terrible precedent.”

If convicted, Jon Norberg faces up to life in prison for the Class AA gross sexual imposition charge and up to five years for the Class C felony reckless endangerment charge.

On Friday, Herman denied Hoy’s motion to dismiss the lesser charge.

Hoy had argued that because no medical standard exists for administering propofol for chronic pain treatment in a non-hospital setting, the state “has essentially mischarged this.”

“It’s highly unusual to prosecute a medical doctor for the off-the-label use of a medication,” Hoy said.

But Euren argued there are clear standards for the use of propofol, and if it were a case of mere negligence, the state wouldn’t have charged it. Not allowing jurors to hear from experts about the seriousness of propofol would “leave the jury lost in the wilderness,” he argued.

Hoy wouldn’t divulge Friday whether he plans to call Jon Norberg to testify, but jurors will hear from him in another way: Herman is allowing affidavits that Norberg gave in the divorce case and to the North Dakota Board of Medical Examiners before it indefinitely suspended his medical license last January.

Mentions of Norberg’s license being suspended won’t be allowed.

Herman said he’s concerned about having “a trial within a trial within a trial” and wants to avoid trying collateral issues.

Otherwise, instead of the trial lasting until Thanksgiving, “we could be here until Christmas,” he said.

Though The Forum does not usually identify alleged victims of sexual assaults, Alonna Norberg consented to be named to contest her husband’s claims that she gave him permission to use propofol on her and that he never sexually abused her.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528