Dr. Steven Shafer was the star propofol expert witness for the prosecution in the manslaughter trial of Dr. Conrad Murray for the death of pop star Michael Jackson. But the jury in the propofol rape trial of Dr. Jon Norberg did not hear that when Shafer, a professor of anesthesiology at Stanford University, took the stand and testified at length about his credentials, again for the prosecution. Judge Douglas Herman had earlier ruled that attorneys can’t mention Murray’s trial or other high-profile cases involving propofol which gained notoriety after Jackson’s death.
Before Shafer took the stand as the first witness called in the trial, both sides presented their opening statements and we learned significant and previously unknown details. Previously it was reported that Norberg administered propofol to his wife Alonna approximately 30 times in the last 18 months, with her permission, for mutually agreed-upon treatment for her chronic pain and unspecified autoimmune disease.
We now know that Alonna Norberg, a pediatric emergency medicine physician, alleges two incidents of being given propofol against her will, rendering her unconscious, during which she awoke to her husband having sex with her. It is also alleged that Norberg used another anesthetic agent, Sevoflurane, in one of the assaults. A search warrant discovered quantities of each in the home. We also now know that Jon Norberg ADMITS to having sex with his wife’s unconscious body on at least one occasion, apparently with her alleged consent. Read on for the details.
In opening statements, prosecutor Reid Brady told jurors that Jon Norberg, an orthopedic hand surgeon, “defied dangerous risks” by giving his wife propofol in their home without proper safety or monitoring equipment. Norberg “was so obsessed with sex, that after doing so, he perpetrated sex acts upon her while she was unaware,” said Brady, an assistant Cass County state’s attorney.
The defense countered that Norberg’s wife, schemed to frame her husband — who earlier indicated he wanted a divorce but then agreed to try to work things out — because she wanted custody of their children and knew she wouldn’t get it due to her psychiatric issues and dependency on prescription drugs. “By turning the tables on him, she could find a way to make Jon Norberg look worse than she looks,” defense attorney Robert Hoy said.
Hoy characterized Alonna Norberg as an “incredibly intelligent” woman who is also an expert on sexual assault, having advocated for sexually abused children and testified in sexual abuse cases in the past. She’s also familiar with how evidence is gathered in sexual assault cases, Hoy claimed. “There is absolutely no physical evidence of any kind…of any kind…of a sexual assault,” he said.
Brady said Alonna Norberg awoke on the night of June 16-17 last year to her husband sexually assaulting her, adding she was awake for “just a brief period and went back out unconscious.” The next morning, she found an opened bottle of propofol and physical evidence on her body that she’d been sexually assaulted, he said.
Hoy highlighted the fact that Alonna didn’t report the alleged sexual assaults, which occurred on June 16-17 and June 19-20, to Fargo police until July 5. “Not only did she not collect any, she didn’t tell law enforcement in time so they could collect any evidence,” Hoy said.
Police eventually served search warrants at the Norbergs’ south Fargo home and found two 20-bottle cases of propofol in a gun safe, one unopened and the other with only four bottles left in it, Brady said. Another safe in Jon Norberg’s bedroom contained sevoflurane, an anesthetic agent administered via the respiratory system in an ether-like manner, that he’s also alleged to have used in the July 19-20 assault.
A key issue in the trial is whether Alonna Norberg gave her husband permission to administer propofol to her. Hoy said the couple made a joint decision to try propofol to treat her chronic pain condition. Brady said Jon Norberg first suggested in 2010 that they try Diprivan, the brand name for propofol, and that Alonna agreed to the use of a new IV therapy, but that she decided to stop using it when she found out it was propofol. Alonna Norberg went on medical disability in 2008 and hasn’t practiced medicine since then, Brady said.
This makes absolutely NO sense to Law Med. Alonna Norberg is a trained emergency room physician. The prosecution would have us believe that she consented to the IV administration of an unknown drug for treatment of her unspecified chronic pain condition, that she would not question what the actual drug was, and that she would not notice that the drug he injected into her was a milky white substance. Propofol is the only drug in the world that is milky white in color and every emergency room physician in the world recognizes the drug propofol in a syringe when they see it. After the first injection of propofol it would have been incredibly obvious to Mrs. Norberg that whatever substance ah been injected into her, it had rendered her unconscious for a period of time. She is not stupid. This claim cannot possibly be correct. Strike one against Alonna Norberg. Since this is a criminal trial, she will undoubtedly be called to the stand to provide testimony. Law Med expects the defense to eviscerate her when it comes to this part of her story.
Then came the expert testimony of Dr. Shafer who said Jon Norberg didn’t meet the minimum standards for administering the drug. This testimony is crucial because aside from the the Class AA felony charge of gross sexual imposition which carries a life sentence, he’s also charged with a Class C felony of reckless endangerment, punishable by up to five years, for allegedly putting his wife’s life at risk by using the drugs on her in a non-hospital setting and without proper personnel and safety equipment.
“The monitoring, the vigilance and the ability to resuscitate were all well below the standard of care,” said Shafer. And the came the next bombshell. Norberg showed a “lack of vigilance” when, according to his own affidavit on July 19, 2011, he had sex with his wife while she was sedated with propofol. “And I do not understand how one can be vigilant as a physician looking after a patient while at the same time engaging in sexual intercourse,” he said.
Up to this point it had not been revealed that Norberg ADMITTED to having sex with his wife while she was unconscious from the propofol he administered to her. Presumably the defense is going to be arguing that Mrs. Norberg CONSENTED to being drugged and used as a sex toy. So the prosecution is going to ask the jury to believe that the wife in a marriage that is failing to the point that divorce been discussed, consented to being drugged to the point of unconsciousness for the sexual pleasure of her recently divorce-seeking husband. While stranger things have happened, Law Med finds this a bridge too far. Strike one against John Norberg.
Shafer went on to testify that Norberg didn’t have the proper expertise, equipment or medication available in case something went wrong, didn’t document the sedation process and didn’t have his wife sign an informed medical consent document. When asked if he could state with a reasonable degree of medical certainty that the situation of Alonna Norberg’s unconsciousness without proper personnel and safety equipment present created a substantial risk of bodily injury or death, Shafer answered, “Yes.”
Law Med predicts Norberg will not escape the Class C felony charge of reckless endangerment. Even if the jury finds that all of this was consensual, including the sex acts, under the law an individual cannot consent to reckless endangerment thus removing criminal liability for the perpetrator. If the jury does their job and understands the law he will be found guilty of this charge. And no amount of defense testimony will cure this.
Based on statements made by Jon Norberg about how he administered propofol to his wife, Shafer said it appears she experienced short intervals of low-level awareness between periods of unconsciousness, which would be consistent with moderate sedation and the “up-and-down dosing method” used. This is consistent with things Hoy noted in opening: Alonna Norberg initially told police her recollection of the June 16-17 assault was like a “clip in time” she couldn’t establish as memory or dream.
The trial is expected to last at least two weeks and possibly until Thanksgiving.
The prospect of a mistrial was raised when Herman, prior to opening statements, addressed a defense challenge that alleges gender discrimination by the prosecution in the jury selection process. Prosecutors used all 11 of their peremptory challenges to strike men from the panel of 36 potential jurors. The final jury has five men, seven women and two female alternate jurors. Shortly after the jury was seated Tuesday afternoon, Hoy made a ‘Batson challenge’ which is an objection to the validity of a peremptory challenge on grounds that it was used to exclude a potential juror based on race, ethnicity or gender. If Herman agrees with the challenge, he could declare a mistrial, which would require another jury to be seated. He’s expected to address the issue in a hearing this week, possibly today.
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