Thursday morning the prosecution in the criminal trial of Dr. Jon Norberg, an orthopedic hand surgeon accused of drugging his wife with propofol and then raping her, called as its last witness a nurse anesthetist who worked with Norberg.
Assistant State’s Attorney Reid Brady asked certified registered nurse anesthetist Paula Schmalz about the equipment and monitoring she uses in sedation and general anesthesia procedures when propofol is administered, trying to draw a contrast with what prosecutors say was a dangerous lack of these items when Norberg administered propofol to his wife in their home. Schmalz, who says she worked with Norberg on more than 1,000 procedures, also said she“had the utmost respect for him.” “He always had the patient’s best interests in mind,” a factor in Norberg’s favor since he is charged with felony reckless endangerment for his lack of proper medical precautions when giving his wife propofol.
After Schmaltz, the prosecution rested their case. Defense attorneys then motioned the court to acquit Norberg on all charges arguing that the prosecution had failed to prove his wife was unconscious when the alleged rape took place, an essential element in the gross sexual imposition and reckless endangerment charges against him. The prosecution disagreed, and referred to Alonna Norberg’s testimony that she blacked out during the three times her husband gave her propofol with her consent, and that she briefly awoke to her husband performing a sex act on her with no memories on either side of the incident. They also cited testimony from Dr. Shafer, a propofol expert, who said that at a high level of moderate sedation, Alonna Norberg would have lacked awareness.
Herman denied the motions for acquittal. Then the defense began their case.
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The first witness for the defense was Byron Haze, a former Denver police lieutenant who experience includes involvement in roughly 2,000 sexual assault investigations. Haze testified he thinks there are several factors present which are considered in identifying a false sexual report in the case of Alonna Norberg.
Haze said Alonna Norberg met five of the six motivating factors for a false report as listed on a chart he said was based on “common-sense things” written in textbooks and taught by the FBI and in the Colorado sex offenders unit.
Byron Haze says there are six motivating factors that push people to file a false sexual assault report. He testified that Mrs. Norberg satisfied 5 out of 6. Among the factors were revenge or retribution, trying to gain attention or sympathy, trying to gain an advantage in divorce proceedings and economic gain. Haze noted that Jon Norberg was in the process of selling his surgery practice around the time of the alleged assaults on the nights of June 16-17 and June 19-20, 2011. Alonna Norberg also filed for divorce the day after she made her criminal complaint to the police.
On cross-examination, Brady challenged Haze’s statistics on false reporting of sexual assaults, as well as his credentials as an expert witness. Haze said he retired from law enforcement in 1990 after nearly 26 years with the Denver Police Department and hasn’t attended training on sexual assault investigations since then. Haze also presented a chart of the 6 factors to the jury, inviting some contentious cross examination.
“Can you tell us where this chart came from, is this something you created or did it come from somewhere else?” asked defense attorney, Robert Hoy on direct. “No it’s mostly common sense, things that have been written within textbooks, ” said Haze.
On cross examination prosecutors tried to poke holes in Haze’s testimony and put his credibility in question. “You last worked as a law enforcement officer in 1990?” asked Brady.
Brady: “When did you last attend a training on sexual assault investigations?”
Haze: “Around that time. ”
Brady: “Who prepared this chart, the big chart?”
Haze: “This chart here? I don’t know.”
Brady: “Say it again?”
Haze: “I don’t know. ”
Brady: “The chart in your hand, you prepared in your report. ”
Haze: “It could be, yes. ”
Haze also characterized Mrs. Norberg as an attention seeker, giving the example of her willingness to discuss details of the alleged sexual assaults. “It was clear to me Alonna was very comfortable being a victim and she, not only that, she told neighbors, she told friends, she told family. She told details that would make anyone uncomfortable, ” said Haze.
Haze also questioned why Alonna Norberg, a doctor who is an expert on the collection of evidence in sexual assaults, didn’t have a rape exam performed after the incident. “A lot of times in a case where it’s a he-said, she-said, a lot of times the only way it can be proven that sex even occurred is if you have physical evidence,” he said.
At one point, Haze stepped down from the witness stand and dropped to his knees in front of the jury with a pen in his hand held between his legs to demonstrate why he had “a real problem with the mechanics of this sexual assault,” in which Alonna Norberg claims her husband straddled her torso to force his member into her mouth. “I believe that it would be extremely difficult for him to have oral sex because of the angle of his penis,” said Haze. Personally, Law Med would have objected to the testimony about the particular angle of Norberg’s penis unless the defense provided actual images or video of the item in question, or Norberg took the stand to present it live.
The defense also called Janel Fredericksen, a family law attorney, as an expert witness. Fredericksen said that judges presiding over divorce cases must weigh 13 factors when considering which party should get custody of the children. “If there is credible evidence of domestic violence, that factor trumps everything else,” she said. This testimony supports the defense argument that Mrs. Norberg made up the story about being drugged and raped against her will in order to gain an advantage in her divorce proceedings.
Two defense witnesses who worked with Jon Norberg at the Plastic Surgery Institute, surgical assistant Tammy Potter and registered nurse Melody Shawchuck testified he was a careful, excellent surgeon who planned ahead for his surgeries and started clinic hours at 8:45 a.m. so he could drop his kids off at school.
Potter said Alonna Norberg would call her husband “quite frequently” at work, four to five times a day, but she never heard him being mean or abusive to her. Shawchuck said Alonna Norberg would often appear “weepy, unfocused, kind of scattered” when she would visit the clinic to receive steroid injections from 2009 to 2010. She also said there was a time when she [ Shawchuck ] and Jon Norberg administered light sedation to a patient without an anesthesiologist or nurse anesthetist present, in a defense attempt to show Norberg was adept at propofol administration apparently. On cross-examination the prosecution put that to bed getting Shawchuck to acknowledge they didn’t use propofol or sevoflurane (an inhaled anesthetic routinely used to keep someone asleep once they are knocked out with short acting propofol), the two drugs he’s accused of using on his wife without her consent before sexually assaulting her.
Judge Douglas Herman said defense testimony is expected to last into Monday, and the case could go to the jury on Tuesday. If trial lasts through Wednesday, jurors will not return until Monday due to the Thanksgiving holiday.
Jon Norberg is charged with gross sexual imposition, a Class AA felony punishable by up to life in prison upon conviction. He also faces a Class C felony reckless endangerment charge carrying a maximum penalty of five years. Norberg has previously pled guilty to a reduced misdemeanor charge in a plea deal with prosecutors which would have carried little if any jail time and had minimal effect on his medical license. Once he found out that the conviction was admissible in his divorce proceedings he asked the judge to vacate his guilty plea and enter a plea of innocent. His request was granted and he now risks life in prison and the permanent revocation of his medical license. He will either be a fool or the luckiest man in North Dakota when the jury returns its verdict.
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