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Tuesday, September 25, 2012

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!

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!


  1. Her attorney's argument is fatally flawed. I think the jury, at this time, can/will assume that Baby Gabriel was never found...for the mere fact that the jurors listened to the audio interview by the local journalist in the presence of the Smiths the male LEO. In that very interview she could not state that she knew her baby was safe and sound...nor could she articulate WHO the adoptive parents were. So the notion that the jury would assume that the baby was found is unlikely...Several Law enforcement officers have stated that the illegal [per Arizona Laws] "adoptive" parents could not be identified. I think the most "concrete" evidence that Elizabeth gave was "I think the mother's name was Cheryl"...so I think the jury will rightly conclude that the baby is still missing.

  2. After today's testimony and cross examination from the defense....He is actually persuing a strategy of technicalities. From his line of questioning...he elicits answers to to questions that create a UNKNOWABLE answer; is the child dead or alive...if the answer is "I don't know, or I can't say;......HE wants the jury to acquit solely bc they don't have the answer. "If he's DEAD he's NOT kidnapped" BC TECHNICALLY she didn't violate any COURT ORDER until LOGAN was given SOLE custody and at that point....Gabriel was no where to be found. SMART but FLAWED..the jury is going to have to look at this case MICROSCOPICALLY AND MACROSCOPICALLY...HENCE once the jury reverts back to baskics...Logan is the father...he had JOINT custody...she was NOT supposed to make ANY MAJOR decisions or actions that impact the child WITHOUT the knowledge or approval of LOGAN. SHE DID JUST THAT WHEN SHE LEFT TOWN WITH THE INTENT OF NOT RETURNING....it's a LOSSING argument. ANALOGY: If I steal a painting and sell it before the owener realizes it...did I steal it? THE ANSWER IS YES


  3. You're right, Remarkaboi, it's all about the technicalities. I personally have never seen a "no defense presented" case work, but good luck to him. With motions to the judge, he might gain some ground. I hate to second-guess juries, but in this case looks like I'm willing to break my own rule. Without being given some reason to feel sorry for her or see things from her point of view, this jury has been left with lots of evidence that the defendant is cruel and deceitful. And most of all the dear baby is unaccounted for. What is left for the jurors to hang on to? Technicalities, indeed. Thanks for sharing your thoughts here.

  4. I also found, yesterdy, the defense's closing to be inconsistent. On a particular count he would argue that EJ's statements were statements of fact or truth and therefore an acquittal on that count is neccessary. For example...he wants the jury to conclude that EJ is not guilty of Kidnapping bc no "physical" restraint occurred lol AND EJ's statments to Logan were relayed in the "past tense" which would eliminate a kidnapping count solely because kidnapping involves "imminent danger...not past danger" HAHAHHA. OMG if there was an award for a smoke and mirrors defense that was it lol. It is remarkable that her attorney can even suggest that his client was at all truthful at any given point in the investigation...hence she can NEVER be trusted [and I believe she later recanted]..so the notion that her statement of harming Gabriel would be considered "past tense" in the real sense of the meaning is by itself laughable...unless he wants the jury to conclude that SHE DID kill Gabriel [which is very problematic for obvious reasons]. The notion that EJ did not "restrain" BG is ridiculous and almost offensive....the care of a new born is exlusively "restraining"; babies are not capable of autonomy and mobility. They come/go and do as their caretakers demands. Thus if EJ does not provide access to the biological father...then by definition, EJ has "restrained" BG in the technical aspect of the kidnapping charge. Jurors are not stupid [well at least most; Casey Anthony's not withstanding].


  5. OH my second part was supposed to focus on her attorney's insistence that EJ told fabrications in defense of the conspiracy charge acquittal. If her statements were UNTRUE....then the conspiracy charge should be dropped. Well even in the world of "make believe" you have to be consistent to win an argument...EITHER EJ Johnson is TRUSTWORTH and TRUTHFUL [hence the acquittal in the kidnapping charge] or she is UNTRUTHFUL [hence the acquittal of the conspiracy charge]

    UM...again inconsistent arguments on different charges when....NO ONE BELIEVES ANY THING EJ says. We can only confirm her statements as true or untrue after confirmation by exhaustive investigations...THEREFORE NOTHING she SAID, AT THE TIME SHE SAID IT...CAN BE BELIEVED. Hence you almost HAVE to convict her on both counts, as the most insideous interpretation is the most logical, at the time she said them [as the listener would conclude]! IE...eventhough Logan's interpretation is not "relevant" to the kidnapping technicalities but he interpreted her statements correctly...he did not believe that she had killed BG at the time of her statment, but wasn't sure which would by definition create a IMMENINENT danger warning in his mind...