STARKVILLE — His lead attorney will be allowed to make a closing argument today, but was otherwise tossed from the case as the trial of Dane Davenport, the Vicksburg-based state trooper accused of fondling a 14-year old boy here on Sept. 23, 2007, moved toward jury deliberations.

Davenport, 46, is charged with one count of the offense and could be sentenced to 15 years in prison if convicted.

John Zelbst, who also represented Davenport in two previous cases ending in mistrials, was barred by Circuit Judge James Kitchens from questioning witnesses — including his own client — Thursday afternoon after asking what the judge ruled was an improper question.

Prosecutors filed a motion to have Zelbst removed from the case or sanctioned, saying the jury “may have been poisoned at this point,” meaning another mistrial loomed.

“There are rules of evidence that you’ve got to follow,” Kitchens told Zelbst after deliberating during the jury’s lunch break. “I’ve been trying cases for a little over six years now and I don’t recall having to tell the jury to disregard a question more than once. I’ve had to do it I don’t know how many times here.” Kitchens compared presiding in the trial, which started with jury selection Monday, to monitoring a school lunchroom. The trial has been marked by numerous interruptions — objections from both sides, bench conferences, warnings to the attorneys and having to ask the jury to leave the courtroom.

Kitchens said his only choices were to remove Zelbst from the case and have another member of the defense team finish it, or declare a mistrial. “I do not want to mistry this case,” he said. “As I see it, I have to remove Mr. Zelbst.”

Zelbst has headed a team that includes his Oklahoma law partner, Chandra Holmes-Ray, Louisiana lawyer Michael Cupit, who practices in Mississippi, and Starkville lawyer Austin Vollor. The team represented Davenport in September when his trial on similar charges in Warren County ended in a hung jury and in an October trial before Kitchens that was ended after a witness responded to a Zelbst question with information the jury was not supposed to hear.

Zelbst pleaded to remain on the case. “It is so dangerous to take me off the case at this point,” Zelbst said. “We are within a few steps of completing the case. It would send a prejudicial message to the jury.” Kitchens then ruled Holmes-Ray could question witnesses and Zelbst could make the final arguments. “It’s probably the most workable thing I can live with,” he said, adding, to Zelbst, “Your leash is going to be rather short.”

The pattern of the case has been sharp conflict and strong emotions. Three people, including the teen identified in the indictment, testified Davenport molested them. A string of witnesses attested to Davenport’s good morality and character. Expert witnesses, including one called Thursday in rebuttal, have offered conflicting opinions.

The trooper has adamantly denied the accusations and said a sour relationship with two of the boys’ mother has motivated charges here and in Warren County. “I want to tell what really happened,” Davenport told the jury, after being reminded his testimony was optional.

He said there were others nearby when the incident occurred in Starkville, including the boy’s mother. He had told the teen to do something and when the boy “said something smart” he jumped on him and started wrestling. The mother then saw them and said, “What are y’all doing?”

“I thought she was mad because we were goofing off,” he said. He could not remember at what point the mother accused him of the abuse, but said it could have been about eight days later when she called and talked to him about it. He also answered questions about the other allegations, both in direct questioning and cross-examination.

“Dane, are you guilty of these charges?” Holmes-Ray asked him.

“No, I did not do this,” he said, starting to add “so help me God.”

Kitchens told jurors he would give his instructions for their deliberations and they’d hear closing arguments by prosecution and defense attorneys today. He has another trial set for Monday, indicating jurors may deliberate through the weekend, if necessary.

Davenport’s Warren County case is scheduled for retrial May 11.

Contact Pamela Hitchins at phitchins@vicksburgpost.com