By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
In one of the most potent lines of the trial, Fotinakes turned to jurors and said Doe's condition was "somewhere between stupor and coma, but you don't have to be an expert [to see this]. Use your common sense." Fisk, who had been watching the testimony, whispered in Cavallo's ear and then sat back in his seat, deflated.
The task of discrediting Fotinakes fell largely to John Barnett, the most skillful of the defense team's nine lawyers. That required Barnett to turn his defense team's entire legal strategy on its head.
In their opening statements, the defense promised it would prove Doe had been an actress in the video, willingly and—this is key—consciously playing the role of an unconscious victim. The defense never offered evidence to support that claim. In fact, in one of the more embarrassing moments of the trial, Barnett tried to get the jury to believe Doe had faked a stupor during the alleged gang rape because she had described her behavior at another party as "like I was drunk." The defense lawyer stressed that Doe had used "like" meaning, he argued, "acting."
Barnett had apparently missed 20 years of popular culture during which the word "like" became a common vocal filler in the American vernacular. Even if Barnett didn't—or merely pretended he didn't—understand that fact, Doe did. "That's how I talk," Doe said on the witness stand. "I say 'like' a lot." Barnett struck a pose of disbelief for the jury. But days later, a parade of Doe's ex-girlfriends took the witness stand for the defense and inadvertently exposed Barnett's fiction: the girls loaded their sentences with the word, too.
It wouldn't be so easy for Barnett to twist Fotinakes' words. In more than an hour of cross-examination, Barnett tried to get the neurologist to admit he'd left the jury with a "misimpression" that Doe had been in an alcohol/drug stupor. The defense lawyer asked the doctor if it was possible the teenager hadn't been intoxicated or acting but rather had fallen into a self-induced coma "as a method of escaping" a "disruptive" home life.
Fotinakes—who had been ordered by Barnett just to answer "yes" or "no" to his questions—disagreed. Hess later allowed the doctor to explain: there was no reason for such psychogenic explanations when there was ready evidence on the video of alcohol consumption and intoxication.
Stymied, Barnett, now pacing and red-faced, switched back to the original defense theory. Three times in quick succession, he declared the existence of an article titled "Pretending to Be in a Coma." But Fotinakes wouldn't budge. "[She] looks like a person who is increasingly becoming intoxicated," he said. "She would have had to have been very sophisticated to mimic this."