Defense attorney blamed for mistrial in Davenport case

Published 12:00 am Wednesday, October 29, 2008

STARKVILLE — The fondling trial of a Vicksburg state trooper ended here with a mistrial almost as soon as it began and prosecutors and members of the family of the teen who testified he was abused blamed the defense attorney.

Richard Dane Davenport, 46, a Mississippi Highway Safety Patrol master sergeant, will face one count of improper touching or fondling of a child younger than 16 in Oktibbeha County again — once a new trial jury is selected, probably in 2009.

The trial was terminated Tuesday by presiding Circuit Judge James T. Kitchens Jr. after the teen offered testimony that previously had been ruled inadmissible by Kitchens. The judge said the testimony was in response to “invited error” and “not well-crafted questions” on the part of lead defense attorney John Zelbst.

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“The defense attorney in this case asked a question of the victim to which he really did not want an answer,” Mississippi Attorney General Jim Hood said in an e-mailed statement. “When he got his answer he complained and asked for a mistrial. This is just an obvious tactic by the defense to delay justice. The mistrial had nothing to do with the merit of the case. We will ask the judge to set a new date as quickly as possible.”

Family members were equally vocal about what they saw as a tactic to undermine the legal process.

“Dane Davenport is without a doubt guilty,” a family member said in a prepared statement. “This was a deliberate move on Mr. Zelbst’s part to force a mistrial. He asked questions that he knew he should not ask and he got answers that he knew he should not get so he could force a mistrial.

“He forced the mistrial and a delay of justice, but justice is coming… another trial is coming,” according to the statement from the aunt of the alleged victim.

Davenport was tried in September in Warren County Circuit Court on nine counts of child sexual molestation involving the same victim and one of his older brothers, who by state law are not identified. That case in Vicksburg also ended in a mistrial, but after jurors said they were hopelessly deadlocked and unable to reach a verdict. A retrial has been scheduled for May 11, 2009.

Kitchens also will schedule a retrial in Oktibbeha County. After declaring the mistrial, he told attorneys to appear Jan. 23 in West Point in Clay County, one of four counties in Kitchens’ 16th Circuit Court District, for a hearing to address all issues related to admissibility of evidence during the retrial “so that there is no confusion. We will have this matter flushed out,” he said.

Tuesday’s court session was heated almost from the beginning. Zelbst’s opening statement to the jury was interrupted twice by potential witnesses — including the victim — having to be asked to leave the courtroom, where they were seated as observers. After the second interruption, Kitchens asked the jury to leave the room, and then called a recess, admonishing both prosecution and defense teams to clearly instruct their potential witnesses on who was and was not allowed to observe in court.

After court resumed, Zelbst finished his statement and the prosecution called the teen to the stand.

Three times during cross-examination in response to questions from Zelbst — sometimes multiple, open-ended questions at a time — the witness referred to being raped by the defendant, a charge Davenport faces in Warren County but not in the Oktibbeha case. Kitchens had ruled testimony had to be limited to the specific accusation for which Davenport was being tried.

After each of the first two references, prosecution and defense attorneys conferred quietly at the bench with Kitchens. After the third, Kitchens again asked the jury to leave the courtroom. Zelbst then asked for a mistrial.

Kitchens responded, “This thing’s gotten so far afield, and I’m not sure whether I can get it back on track. There’s a line between being an advocate and being hostile. I have argued myself with a witness a time or two when I was in the pit.” To research the legal issues, he called an early recess and said he would give his ruling when court resumed for the afternoon.

Once reconvened, and with the jury out of the courtroom, Kitchens linked his decision to the judicial doctrine of “invited error.”

“If you invited the error, you could not complain about the result,” Kitchens explained. He said of the three instances of improper testimony by the witness, he had ruled the first two “invited error.” The third was borderline — if not quite invited, still the result of poorly worded questions, he said.

“Accordingly, because the person that’s on trial here is Mr. Davenport and not Mr. Zelbst, prudence … dictates that I grant the motion (for a mistrial) at this time.”

Zelbst said the blame belonged to the witness. “The mistrial was granted over the witness’… repeated violations of what the court had ruled on earlier, before the trial started, that he wasn’t to talk about certain issues and he repeatedly did that. The judge had no choice but to grant the mistrial.”

In Monday’s pretrial proceedings, Kitchens had advised both prosecutors and defense attorneys that certain other limits on testimony could be imposed as the trial progressed, including evidence related to financial affairs.

Davenport is a 20-year veteran of the state highway patrol. In addition to patrol, he managed the driver’s licensing bureau on Grove Street in Vicksburg.

The attorney general is prosecuting the cases because they involve a state employee charged in multiple jurisdictions.


Contact Pamela Hitchins at