Custody investigator must testify at Norberg's rape trial
The custody investigator assigned to the divorce case of a Fargo surgeon who's accused of drugging and raping his wife must testify at his criminal trial, a judge ruled Thursday while voicing concern about the "terrible precedent" it could set.
Judge Douglas Herman said the ruling could have a "chilling effect" on people's willingness to be custody investigators.
"Unfortunately, my legal research leads me to an unhappy conclusion," Herman said before denying the investigator's motion to quash a subpoena requiring him to testify at the trial of Fargo surgeon Jon Norberg.
Norberg is scheduled for trial Nov. 5 in Cass County District Court on charges of gross sexual imposition and reckless endangerment. He has pleaded not guilty to allegations that he drugged his wife, Alonna Norberg, with the powerful sedative propofol and sexually assaulted her between September 2010 and June 2011.
In the couple's pending divorce case, Judge Steven Marquart appointed Fargo attorney Michael Gjesdahl as custody investigator.
Custody investigators, also called parenting investigators, are appointed by the court in divorce cases to help the judge make the best decision for the children involved. North Dakota has 219 qualified parenting investigators, including 40 in the East Central Judicial District, which includes Cass County.
Custody investigators are often required to testify in divorce court about their reports and recommendations, but not in criminal court. Cass County prosecutors served a subpoena on Gjesdahl in May, requiring him to testify at Norberg's trial on the state's behalf.
Assistant State's Attorney Gary Euren said the state wants Gjesdahl to testify about two admissions Jon Norberg allegedly made in the custody investigation regarding the number of times he had sex with his wife while she was on propofol.
"I believe it's important for the jury to hear that," Euren said during Thursday's motion hearing.
Gjesdahl argued that he's obligated to be neutral to the parties involved in the divorce, and testifying as a state's witness would put him in a "decidedly un-neutral role."
It also would run contrary to public policy that keeps custody investigator's work confidential except within the divorce court, he said.
"All those people need to understand that their information will be shared with the court that appointed the investigator," he stated in an affidavit. "However, they are also entitled to the assurance that their information will remain safely and securely within the confines of that particular case."
But Euren noted public policy also requires that crimes be prosecuted to the full extent of the law and that defendants be able to fully defend themselves.
"Which public policy overrides which?" he said.
Norberg's defense attorney, Robert Hoy, said his legal research found that a subpoena overrides a custody investigator's obligation of confidentiality. Herman agreed, saying he would have liked to find a way to keep Gjesdahl off the stand but couldn't.
Gjesdahl said it's been evident since he was assigned to the divorce case that both sides have tried to use him as a "tool" for discovery in the criminal case. He raised concerns that if he's forced to testify, it would impair his ability as an investigator in an already bitter divorce case.
"I don't know if I've ever seen a case as aligned as this one," Gjesdahl said. "Everybody's either in one camp or the other."
"People aren't talking to me anymore," he added. "If they do talk to me, it's to manipulate my work for use in this case. It's clear as a bell."
Attorneys for both sides agreed with the judge that Gjesdahl's investigative report and opinions about Norberg's guilt or innocence won't be admissible.
As for his testimony, "I would hope that the scope would be as narrow as possible," Herman said.
State Court Administrator Sally Holewa said she could not recall any similar instances in which a parenting investigator in a divorce case was subpoenaed to testify in a related criminal case, calling such situations rare.
Though The Forum does not usually identify alleged victims of sexual assault, Alonna Norberg consented to be named to contest her husband's claims that he never sexually abused her and had her permission to give her propofol to treat her pain from an autoimmune disease.
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528