Dustin Dunklee can’t talk about the specifics of the case involving T.J. Presley and Jamie Litton.
But a lot of other people want to talk about it.
Dunklee, the Morgan County prosecutor, is under a court-issued gag order, which prohibits both sides from discussing the case. But on March 6, Nancy Grace, the television host and legal commentator, issued a call for action on her show, asking people to call the county prosecutor’s office and push for first-degree murder charges in the beating death of 3-year-old Blake Litton. She posted the phone number on her TV show and her website. The phones in the prosecutor’s office were flooded with calls.
“I think they already had over 200 phone calls when I talked to them at like 9 in the morning,” lake-area attorney Mike McDorman, who has 37 years of legal experience and has had an office in Versailles since 1975, said during an interview March 7. “I know it has overwhelmed them.”
McDorman has no involvement in the case, other than he has followed it.
Presley and Litton are both charged with second-degree murder, as well as endangering the welfare of a child. Presley was also later charged with abusing a child resulting in death.
Grace, on her show, demanded justice in the case. This message was posted on her website:
“I want justice. A 3-year-old little boy was savagely beaten, his little body had bruises all over his head, neck, torso, legs and arms. Police say this was at the hands of the little boy’s mother’s boyfriend and that his own mother was complicit in not seeking emergency medical attention. The couple was charged with second-degree murder. Why? These people should be charged with first-degree capital murder and face the death penalty.”
McDorman said Grace’s call for action didn’t help matters and only served to overwhelm the prosecutor’s office staff.
“The gist of Nancy Grace is call the prosecutor and tell him to charge murder in the first degree,” McDorman said. “Sounds simple enough to do. But there’s a huge difference between convicting someone of murder in the first degree and murder in the second degree.”
McDorman, said Grace, a former prosecutor herself, should know better.
“There’s all kinds of journalism out there,” McDorman said. “What you see so much anymore is the sensationalism that comes along, but sometimes it’s more about making the story rather than doing responsible reporting about it.”
McDorman said there are three criteria that must be met in order to convict someone of first-degree murder.
“One, the person caused the death. We know that (in this case). He’s admitted it, and they have enough circumstantial evidence. Second, he used excessive force and caused the child’s death. He didn’t start out with the intent to kill the child, but lost his temper and punished the child for something the child did he didn’t like and used excessive force and killed the child,” McDorman said. “You see that in a lot of these battered-children cases.”
Page 2 of 3 - The third element is what separates the charge of first-degree murder and a second-degree murder charge.
“That’s what we lawyers refer to as premeditation,” McDorman said. “I’ve only seen the probable cause statements in this case, but we know the child was alive at 2:30 in the morning. Then the call comes in at like 5 a.m. There’s a small window there to prove that this was deliberation. When you convict someone of murder in the first degree, you have to find all three of those elements, and it has to be beyond a reasonable doubt. She (Grace) should know that as a prosecutor. For a TV talk show host to simply demand this be done, I would like her to point out any information she has of any proof of deliberation (on the part of Presley).”
For Dunklee, he may wish he could speak out in response to Grace’s demands, but he can’t.
“That goes with the territory. As a prosecutor, you’re damned if you, damned if you don’t,” McDorman said. “Ethically, you’re required not to comment, but it can be frustrating for the press and it can be hard to bite your tongue when people are being misinformed and jumping to the wrong conclusion, which is especially true in a case like this where you have a small child who was murdered.”
Presley, Jamie Litton’s boyfriend, told investigators Blake Litton soiled his pants and Presley became enraged, lost control of his temper and punished the child excessively, hitting and kicking him “more times than he could remember.”
Presley tried to cover up his actions by staging a fake hit-and-run accident. Presley told Litton about what had happened and told her he was going to fabricate the accident story to avoid going to prison.
McDorman believes Dunklee has filed the appropriate charges in this case, given the evidence.
“As a prosecutor, they are all bound by a code of ethics,” McDorman said. “One is not to charge something he doesn’t have probable cause of. I have got to assume, knowing Dustin as I know him, he doesn’t have the evidence (for a first-degree murder charge).
“Honestly, second-degree murder can still carry with it life imprisonment,” McDorman said. “Obviously, the big difference would give you the right to impose the death penalty. Even as sad as this case in, I don’t know if a jury, given (Presley’s) age, 22, would call for taking his life.’
However, as the investigation continues and if further evidence is found, the murder charge can be amended.
“Obviously, he’s learned additional facts that he leveled the additional charges (against Presley of endangering the welfare of a child and abusing a child resulting in death),” McDorman said. “He could learn more as things go along. We’re talking about a case that is 30 days old. There can be additional evidence that could come to light.
Page 3 of 3 - “There is no statute of limitation for murder first,” McDorman said. “We’re talking five years on anything else. So he’s got all the time in the world. I’ve had a case that was second (degree murder) and they amended it to first over a year and a half later, because they discovered additional facts. And I’ve had it go the other way as well.
“I do believe if they do have (the evidence), they will charge it (first-degree murder),” McDorman said.