February 6, 2009
Tim Pratt -
STARKVILLE -- The case of a Mississippi Highway Patrol officer accused of fondling a teenage boy came dangerously close to a mistrial Thursday after his attorney mentioned inadmissible evidence in front of an Oktibbeha County jury.
Trooper Richard "Dane" Davenport''s defense attorney, John Zelbst, of Oklahoma, has drawn ire from Judge Jim Kitchens and the prosecution throughout the week for improperly phrasing questions, leading his witnesses and referencing evidence previously deemed inadmissible.
The situation finally came to a head Thursday when Zelbst asked a witness whether she heard one of Davenport''s multiple accusers, who is now 24, had contacted a lawyer to recant previous allegations of sexual abuse.
It is unclear if the accuser really did attempt to recant his allegations, but Zelbst''s question drew an immediate objection from prosecutor Brandon Ogburn and brought the trial to a screeching halt. According to Ogburn, Zelbst''s question was intentional and designed to make the jury to believe the 24-year-old accuser lied under oath this week when he testified Davenport fondled him a half dozen times between 1990 and 1992.
The state subpoenaed the 24-year-old to testify in the current case against Davenport, which revolves around a fondling charge made by a boy who is now 15. The state wanted to show Davenport''s history of sexual relations with young boys but Thursday argued Zelbst''s allegation of perjury by the 24-year-old would leave the jury skeptical of his testimony.
"I think the jury has been poisoned, your honor," Ogburn said. "It''s clear to the state the bell has been rung."
Kitchens agreed with the prosecutor''s assessment.
"I''m not so sure if the jury isn''t poisoned at this time," Kitchens said.
The incident didn''t mark the first time Zelbst has been in trouble with Kitchens this trial. The first conflict took place earlier this week when the state called child psychologist Dr. Wood Hyatt to the stand to testify about the behavior of children who have been molested.
When Zelbst cross-examined Hyatt about whether or not children have a tendency to lie, Hyatt replied, "Everybody lies. I think even you lie."
Zelbst took offense to the comment and believed the witness had called him a liar. At the end of questioning, Zelbst asked Hyatt if he wanted to "step outside" to discuss the matter.
Kitchens sent the jury out of the courtroom and reprimanded Zelbst, saying he felt the attorney was challenging the witness to a fight. Zelbst denied the judge''s claim.
Zelbst also asked a witness this week if he knew a sexual battery and fondling trial against Davenport in Warren County had resulted in a hung jury. Kitchens again had to send the jury out of the room while he told Zelbst not to bring up prior verdicts against Davenport in front of the jury.
"You know, if the state would have said some of the things you''ve said this week, I might have called a mistrial," Kitchens said to Zelbst.
According to Zelbst, courtroom procedure is slightly different in his home state of Oklahoma than it is in Mississippi. The statement didn''t surprise Kitchens, who sent the jury out of the courtroom more than a dozen times this week while he discussed rules and procedures with the attorneys.
As Kitchens took a 15-minute recess Thursday to decide whether or not to declare a mistrial, he also considered removing Zelbst from the case and replacing him with Starkville-based attorney Austin Vollor, who is assisting in the trial.
Kitchens ultimately decided to replace Zelbst with Vollor, though Davenport''s entire defense team, including Vollor, begged the judge to reconsider. Ultimately, Vollor told Kitchens he was not well-enough prepared to take over the case on such short notice, but one of Zelbst''s law partners, Chandra Holmes Ray, volunteered to head up Davenport''s defense. Kitchens allowed Holmes Ray to take over the case instead of Vollor.
Still, it wasn''t a total loss for Zelbst. The veteran attorney got permission from Kitchens to present closing arguments to the jury today.
"But your leash is going to be pretty short," Kitchens warned.
The main reason Kitchens didn''t want a mistrial was because this week marks the second time he has presided over the case against Davenport. The trooper first went on trial for fondling in October, but the case ended in a mistrial.
Since the mistrial, tensions have increased between the two sides. Kitchens on Thursday even used the word "hate" when describing the relationship between the families and their respective attorneys.
"I think this thing started spinning out of control in October, and this is a continuation," Kitchens said.
The case in review
Davenport is accused of fondling a young teenager the morning of Sept. 23, 2007. The accuser was only 14 at the time and says the incident took place in a hotel room the morning after a Mississippi State University football game.
Davenport took the stand Thursday in his own defense and says the incident was a misunderstanding.
According to Davenport, he was only wrestling in a playful manner with the accuser on the morning in question. The accuser is now 15 and testified this week Davenport touched him in an "inappropriate" manner.
He also said Davenport fondled him back in 2003. Davenport denied the 2003 incident, as well.
Davenport denies wrongdoing with any of the three alleged victims who testified against him this week.
The prosecution and the defense began closing arguments this morning before turning the case over to the jury for deliberation.