Background
The disappearance of seven-month-old Baby Gabriel horrified the community of Tempe, Arizona. Even more shocking was the unsettling response from Baby Gabriel’s mother, Elizabeth Johnson, who allegedly took the child to San Antonio, Texas to be adopted before he disappeared. According to the prosecution, Baby Gabriel’s mom admits to suffocating Gabriel until he turned blue, stuffing him into a baby bag, and throwing him into the dumpster. Counsel for Ms. Johnson claimed that she is incompetent to stand trial, but the judge disagreed. The trial lasted eight days with six days of testimony, including 29 witnesses called by the prosecution and no witnesses called by the defense. On October 18, after less than two days of deliberations, the jury convicted Elizabeth Johnson of unlawful imprisonment, custodial interference, and conspiracy to commit custodial interference. They were unable to reach a verdict on kidnapping, the most serious of the charges against her.
Charges
Elizabeth Johnson is charged with kidnapping, custodial interference, and conspiracy to commit custodial interference. Johnson also originally faced child abuse charges, however those charges were dismissed July 13, 2012. She is still awaiting trial on these charges which could result in many, many years in custody. The kidnapping charge is pretty straightforward, given Johnson’s conduct. Custodial interference means that Johnson violated the child custody directives and withheld her daughter from the baby’s father.
Tammi Smith, the would-be adoptive mother, was convicted on charges of forgery and conspiracy to commit custodial interference. She served 30 days in jail with the potential for an additional 30 if she does not do well on probation; however, according to Maricopa County authorities, she has been a model inmate.
Court Documents
Facts
For months, Logan McQueary had been caught up in a bitter custody dispute with the mother of his son, and then he received a shocking text message from her. In a subsequent phone call, she told him she had killed their infant son, that she had suffocated him and thrown him out with the garbage. It was the day after Christmas, 2009.
Though that chilling conversation played again and again on nightly news, haunting the residents of Tempe, Arizona, it did not lead to the immediate homicide charges against Elizabeth Johnson, the mother of baby Gabriel. Johnson had fled, first to Texas, and finally to Florida where she was taken into custody. She told investigators she had taken the nine-month-old to give him up for adoption, that she gave Gabriel to a couple she did not know in a San Antonio park.
Tempe police then began a missing person’s investigation to find the lost child. They found that Jack and Tammi Smith, a Tempe couple, had been discussing adopting baby Gabriel with Johnson. They had even cared for the child for a week in December, but told police they gave the child back to Johnson since McQueary still had partial custody. They theorized that the Smiths may have been the couple who took baby Gabriel in that San Antonio park.
Tammi Smith was ultimately arrested under charges of forgery and conspiracy to commit custodial interference related to this case. She was convicted of these charges and sentenced to two 30-day sentences. In a little bit of sentencing jigsaw, Smith started her first 30 days in custody immediately after sentencing, and she was released from custody on August 4. Now she’s on probation. If she does well on probation, the judge can decide not to impose the second 30-day sentence. Considering that she might have gotten up to seven years for her conviction, it’s a light sentence.
It has been more than two years since baby Gabriel went missing, and no trace of the child, who would be three years old by now, has been found. Without proof positive that the child has died, prosecutors are holding off on a homicide indictment against Johnson. Instead, she was charged with various counts of kidnapping, custodial interference, and conspiracy to commit custodial interference. After a lengthy trial, Johnson was acquitted of the most serious charge — kidnapping — but convicted of the lesser offense of unlawful imprisonment as well as custodial interference and conspiracy to commit custodial interference.
Players
Elizabeth Johnson: the 24-year-old mother of the missing child who told the child’s father she killed him, then changed her story for investigators.
Logan McQueary: The father of the missing child, whom police are treating as the victim in this case.
Tammi Smith: a Tempe woman who was considering adopting baby Gabriel. Researchers found that Smith, who has two adopted children, was always looking for young mothers from whom she could adopt more children. She used Myspace to solicit young military wives to give up their children, and she even approached pregnant women in public to ask if they were interested in adoption.
Smith was sentenced to 30 days in jail for her involvement in this case after she was convicted of forgery and conspiracy to commit custodial interference. Her elated husband posted this on Facebook after he picked her up from jail on August 4: “MY FAMILY IS COMPLETE AGAIN!!! At 1:45am I picked the worlds most beautiful ‘jail bird’ up from the jail. She has lthe [sic] most amazing details of Gods [sic] love, mercy and favor to tell you about. Thanks for all the love and support from everyone. I don’t think I could have made it without you!!!! Much love Jack Smith.”
Marc Victor: Johnson’s defense lawyer, from Chandler, Arizona. No stranger to media, he said that he’s playing for keeps with this case. Only recently hired by Johnson, he has requested further time to acquaint himself with the case. In addition to a criminal defense practice, he also is a civil rights attorney.
Videos
5-Year Sentence Handed Down… Is It Fair?
Defense Asks Judge To Go Easy After A Partial Acquittal
Mother Found Guilty; Just Not Of Kidnapping Or Murder
5-Year Sentence Handed Down… Is It Fair?
Social Media The Key To Defendant’s Arrest
Is Her Mental Health A Viable Defense?
Wild Child Or Caring Mother Seeking A Home For Baby Gabriel?
Why There Is No Murder Charge For Baby Gabriel?
Legal Commentary
Introduction: Trial fans who followed the Casey Anthony trial with bated breath might see this case as a second chance to put a young mother on trial for killing her baby, but the facts of this case tell quite a different tale.
For starters, while both cases feature very young mothers who appeared to change the stories surrounding the disappearance of their children, baby Gabriel’s corpse has not been found, and thus far, Johnson has not been charged with homicide.
What might end up happening if investigators determine that Gabriel has, in fact, been killed, is that a homicide trial would take place in Texas, where Johnson was thought to be when the child disappeared. In that case, a homicide trial would be stalled until her Arizona kidnapping and child abuse case is resolved. After a verdict in the Arizona case, Johnson would probably be transported to Texas and held to answer for the homicide charges.
This is a good example of justice not only being blind, but patient, too. Keep your eye on Wild About Trial for all the latest developments.
July 31, 2012: Recent reports that the prosecutor has dropped the child abuse charges in this case indicate that the government does not have the facts they need to prove that part of the case. The primary reason is that the baby’s body is still missing, long after the initial disappearance. It is difficult to prove child abuse without physical evidence of the alleged abuse, such as medical reports or photographs of bruising or other injuries.
It’s possible that in the media fervor over this case when it first erupted the prosecutors got a little overzealous in their charges, an easy thing for anyone in the spotlight to do. However, it is equally likely that as the case headed to trial, they realized that the evidence they do have of child abuse would not be admissible in court for one reason or another. For example, if the only reports they have of child abuse come from a witness who is not able to testify, that would be hearsay, which cannot be presented to a jury.
September 18, 2012: Opening statements in this case begin tomorrow and the attorneys are already selecting a jury. At this point, the case has been streamlined down to two simple charges: kidnapping and custodial interference.
Both of these charges are relatively straightforward. For the jury to convict on the kidnapping charge, the prosecutor must prove beyond a reasonable doubt that Johnson took the child illegally and secured him someplace. Or, in the words of the legendary criminal law expert Professor Whitebread, you need “1. a kid, and 2. a napping.”
For the jury to convict on the custodial interference, the prosecutor must show that Johnson was acting in a way that would deprive Logan McQueary of his parental rights.
Now that this case has devolved from a multi-state homicide investigation to a kidnapping case, Johnson’s defenses have also seriously dwindled. The prosecution never had the evidence to prove Johnson killed the child or otherwise abused him, despite her angry text messages to the child’s father. But now that they have downsized the case to this degree, they should be able to secure this conviction based entirely on Johnson’s statements to police.
Johnson was candid that she took her eight-month-old son, Gabriel, to San Antonio, Texas, to put him up for adoption. Her statements were corroborated by Tammi Smith, her co-conspirator who recently served 30 days on the custodial interference charge. Johnson’s car was also seen in San Antonio.
As long as prosecutors can show that the baby’s legal father, Logan McQueary, did not consent to her taking the baby to San Antonio, they should be able to convict Johnson.
At this point, the only defense strategy that might carry some weight with the jury is that Johnson was suffering from debilitating postpartum depression, which led to the kidnapping. However, even that would only work to mitigate her culpability. Postpartum depression is a very real, very serious mental health disorder that has caused many mothers to involuntarily harm their children; however, it does not negate their acts altogether.
Although many in the public are outraged and crying out for Johnson’s head, the fact that she is not on trial for baby Gabriel’s murder is ultimately a good thing. It would be a repeat Casey Anthony situation, where lack of evidence fails to secure a conviction, and the defendant goes home. In this case, Johnson will almost certainly be convicted of the kidnapping charge, and she will face a lengthy prison term as a penalty. It’s not a murder conviction, but it is something for the people who lost baby Gabriel to hold on to.
December 12, 2012: In a chilling close to this tragic case, Elizabeth Johnson told her sentencing judge tearfully that she believed she deserved “the max.”
The judge evidently disagreed with Johnson and gave her a midterm sentence of five and a quarter years in prison for her role in the disappearance of her infant son.
This sentence was still a great deal higher than the WAT attorneys expected it would be.
Johnson’s convictions of custodial interference and unlawful imprisonment, combined with her nonexistent criminal record and her long history of mental health problems might otherwise have resulted in a low term sentence.
The higher penalty is likely the court’s way of acknowledging two critical issues: First, that Johnson never fully cooperated with police and prosecutors in locating baby Gabriel, and second, that if she was sentenced to a shorter jail term, she would be eligible for release from custody since she has already served three years while awaiting trial.
As it is, she will remain in custody for the time being, and when she is released she will be on probation. The court also recommended psychiatric treatment for the troubled Johnson.
