A third criminal trial in Warren County will be scheduled, probably in 2011, for Dane Davenport, Attorney General Jim Hood has decided.

The 47-year-old state trooper will face four counts of fondling a child younger than 14 on which jurors here could not agree when his second trial ended March 5. The same jury acquitted him of five counts of child sexual battery and molestation in the same indictment.

Davenport’s first Warren County trial, in September 2008, resulted in a “hopelessly deadlocked” jury.

Davenport also was tried on a related molestation charge in Oktibbeha County. He was acquitted there in a five-day trial in February 2009 after an initial mistrial in October 2009.

“I am very surprised,” said Nancy Whitten, a juror for Davenport’s most recent trial, when contacted about Hood’s decision. “No. 1, I wouldn’t put the boys through it again, and No. 2, if this has gone before two juries and come back hung juries both times — I just felt like the state did not do a sufficient job.”

Whitten said last month’s panel was split on the four counts, five jurors voting guilty and seven not guilty. “I never voted him innocent,” she said. “I voted not guilty for lack of evidence to show him guilty beyond a reasonable doubt.”

A spokesman in Hood’s office said prosecutors had discussed the case with the family of Davenport’s accusers, two brothers, in deciding whether to go forward with a third trial.

Hood would not comment on how common it is to try a defendant a third time.

One of Davenport’s private defense lawyers, Chandra Holmes Ray, said, “We feel it’s unfortunate, but we are ready, willing and prepared to go forward and fight with the same amount of vigor that we’ve had before.”

“It seems like a waste of the taxpayers’ money, but it sounds like an important case if they are continuing to try it,” said Judy Johnson, a professor of criminal law at the Mississippi College School of Law. “The state must feel like they can prove that he’s guilty.”

Johnson would not venture a guess as to the cost of a criminal trial such as Davenport’s.

A new trial date has not been set, but proposed dates are all in 2011, said Holmes Ray.

Davenport, 407 Warren St., a master sergeant with the Mississippi Highway Safety Patrol, has been on unpaid administrative leave since his nine-count indictment here in January 2008.

The charges still pending against Davenport allege fondling in October 1999, July 2003, November 2005 and November or December 2005.

Hood, prosecuting the case because it involves a state employee and two counties, said the trial would be in Warren County.

About 600 residents here — two to three times the usual number — were called for the March trial to select 12 to serve.

“I think it will be hard to find a jury here that hasn’t kept up with the case,” Whitten said.

She also said for jurors, the remaining four counts are tough to prove beyond a reasonable doubt because without witnesses an accusation of fondling always comes down to one person’s word against another.

Prosecutors have claimed that Davenport, a career law enforcement officer and Sunday school teacher, was a “wolf in sheep’s clothing.”

His attorneys have said he is being falsely accused by the boys’ mother to protect her financial interests in a business relationship. While the mother took the stand in Davenport’s first Warren County trial and also testified in Oktibbeha County, she did not testify in March.

Circuit Judge Isadore Patrick has presided over both of Davenport’s previous trials here.

Contact Pamela Hitchins at phitchins@vicksburgpost.com