Despite his admissions, the doctor refused to abandon his opinion that Doe's occasional movements proved she was conscious. Hess tried a different tack. He asked why, for example, the girl didn't flinch when the defendants violently slapped her buttocks; shoved a pool cue in her vagina and rectum; and twisted, pulled and yanked on her nipples. Fisk said he "can't tell" if the slapping, shoving, twisting and pulling caused pain, "and that's why I didn't include that" on Exhibit X. Hess noted how far the breast had been "stretched upward," but Fisk said he guessed it was painless. Hess asked Fisk to assume for the moment that the nipple play was painful. If so, Hess asked, would Doe's failure to respond indicate stupor. Fisk seemed annoyed and said, "Correct."
Hess wasn't done. He cleverly prompted Fisk to remind jurors of his pro-defense bias by asking if all the alcohol and drugs given to Doe would have affected her ability to respond. All Fisk would say was, "It could."
But the case hinges on whether Doe was so intoxicated that she couldn't resist. Earlier with Cavallo, Fisk dramatically claimed that the girl had been so "close" to alert that she would have been able to solve math problems during the gangbang. It was memorable evidence for jurors if true. So Hess reminded him of a graphic scene, the one in which Doe was the focal point of the defendant's sexual force but as limp and unresponsive as a rag doll.
"At that point, is she able to do math?" an incredulous Hess asked. Fisk shrugged his shoulders. "The answer is obviously difficult," he said. "Maybe not."
For a blow-by-blow description of Exhibit X, see this story at ocweekly.com.