Reporter's Notebook on Elizabeth Johnson Case

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Quick thoughts and tidbits from the #ElizabethJohnson #BabyGabriel trial....

In December 2009, young mother Elizabeth Johnson made her baby boy disappear in a cloud of deceit and spite. This isn't really in dispute as her own defense attorney, Marc Victor, told the jury his team accepted most of the evidence against her.

A good view of the "peekaboo" style shoulder cutaways Elizabeth Johnson wore to court.

What Victor's strategy is instead is to make jurors question whether her conduct, while distasteful and "unlikeable," actually constitutes the crimes with which she is charged. These crimes are Count 1 Kidnapping, Count 2 Custodial Interference, Count 3 Conspiracy to Commit Custodial Interference.

It is not known whether baby Gabriel, who would now be 3 years old, is alive or dead. Therefore, no murder charge. Yet.

But the jury is not allowed to know that Gabriel's "current status" or whereabouts are unknown. They are strictly to decide whether certain incidents --without knowing these incidents resulted in the baby's permanent disappearance-- fit the legal definitions of those three charges.

When your client is caught on tape saying, "I killed him, yes, I did, I did" and in text you'll never find "his little blue dead body," a defense attorney has few options left.

Victor has let quite a few witnesses waltz away from the witness stand without a single objection or cross examination.

I can't get inside his mind but my experience tells me he does this because he feels he cannot win his client any Juror Goodwill points by appearing to badger a grieving father and other sympathetic witnesses. Better to just take the hit and then get them off the stand as quickly as possible.

But this afternoon, Victor did start cross-examining a tiny bit. When he did, he showed that his strategy is to use their testimony to draw ire and blame away from his client and onto the almost cartoonish character of Tammi Smith, who has already been convicted in a separate trial for the same incidents.

Victor gets each witness he speaks to to admit, in certain circumstances, that specific actions that served to deprive Logan McQueary of his custody of his baby were performed by Tammi Smith and that the witness had no knowledge of Elizabeth even knowing about that particular action.

It's a valiant effort. But easily pierced when the prosecutor stands up on re-direct and uses the same witness to re-emphasize seemingly unassailable evidence that Elizabeth did participate in Tammi's scheme.

Another prong to Victor's strategy is to claim that Elizabeth cannot be guilty of kidnapping or custodial interference because, basically, she was the baby's mother and she can take him wherever she wants. He is disputing that Elizabeth understood that a family court judge had made an "official" order awarding joint custody to both parents.  I put the word in quote marks because a document was introduced this afternoon allegedly in Elizabeth's words, that on December 20th 2009 she did not understand that Logan McQueary's right to take his son for half the week was "an official order." She goes on to say, in this 2009 document, that she is only handing over the baby because Logan is otherwise threatening to "file something official" against her if she doesn't. The document, with signature lines for both young parents, is signed by neither.

Victor got the witness on the stand, a police detective, to admit he had no evidence that Elizabeth had actually prepared that document, hinting that perhaps Tammi had drawn it up. It's a shame the detective never found the computer upon which this document was written, it would have shored things up a little.

Nevertheless, Victor's strategy immediately took a hit when the prosecutor responded by re-presenting a forged paternity affidavit claiming complete stranger Craig Cherry was the baby's father with Elizabeth's signature right on it. Elizabeth had to know that she had never so much as met Craig Cherry, let alone shared a child with him. Cherry, by the way, is no stranger to Tammi Smith. He is her cousin and an unwitting pawn in the scheme. He has been cleared of knowing what they were up to.

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Some Twittles who joined me late in the day may have wondered what a video tape of a custody hearing was doing right in the middle of this criminal trial? Well, it was shooting serious blasts at Victor's defense strategy, that's what. Elizabeth is seen in the video clearly stating to the judge that she agrees to joint custody and that she understands and supports the idea that this mean both parents fully participate in all important decisions regarding baby Gabriel. These decisions, the judge lists off, include things like where he goes to school and what religion he'll be raised in. It would be hard to conceive that anyone at that hearing could reasonably conclude the judge was excepting adopting out the baby to brand new parents from that list of things that had to be decided jointly.

The judge gave the young couple such a vigorous "talking-to" and lecture on what his order meant that Victor will have to be very creative to convince jurors she A) really didn't understand it or B) it wasn't in reality in effect or did not somehow affect her hiding the baby with the Smiths, obfuscating paternity, and taking the baby out of state.

What Victor may be banking on is the ace up his sleeve, that jurors really don't know where baby Gabriel is right now. Perhaps one or more of them will speculate that the baby is now happily enjoying pre-school fingerpaints and graham cracker snacks while the young father is vindictively pursuing revenge for things that happened in the past. If so, they may be moved to sympathy for the young woman who sobs loudly at the defense table from time to time. They may not want to convict her and deprive her little tyke of his mother any further.

This has to be the reason Elizabeth Johnson's attorneys have fought to keep the jury in the dark about the baby's "current status." It's possible it could be a winning strategy.

By the way, for those of you who were diligently following today, there were fewer tweets in the late afternoon because so much of the testimony was administrative in nature, setting up the introduction of the video and audio recordings, which you then mostly heard for yourselves.

Also, the witnesses have their backs to us when they tell the court clerk what their names are, so it's VERY difficult to hear them. I make my best guess and sometimes get it wrong. Bear with me! And lastly, I did one of my own personal worst peeves late in the afternoon when fingers were losing their contact with the brain. I typed "their" when I meant "there!" Dang! Fifty lashes with a wet Fifth Grade Primer for me!  Mea culpa! Mea culpa! I do beg all of you to have mercy on a tired tweeter, straining to hear, trying to keep up with a fast moving trial at the same time trying to keep an eye on your questions and responses.  I appreciate your patience.

A question I do frequently get is "are you watching on the internet?"  The answer is NO!  I drive downtown every day, schlep through parking lots (and pay for them) and then security, claim-squat a power outlet, and sit within a few feet of Elizabeth Johnson herself.  If anyone wants to retweet that from now and then, it would certainly save me some time!

You are welcome to follow me  @CamilleKimball
or to discuss the case in comments here below. I allow far more characters than twitter does!

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Pssst! Going to jail, buying documents, and everything else it takes to get this kind of info for the blog takes time and money! Every time you make a purchase here, it helps me be able to do more for you!