Baby Gabriel cases back in the courts - East Valley Tribune: Public Safety

Baby Gabriel cases back in the courts

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Posted: Thursday, April 12, 2012 5:12 pm | Updated: 9:45 am, Thu Apr 19, 2012.

A trial is under way for a Scottsdale woman charged in connection with the high-profile case of missing Baby Gabriel Johnson, while the trial for the mother of the missing child remains months away.

The proceedings involving Tammi Peters Smith, 40, began in Maricopa County Superior Judge Joseph Kreamer’s courtroom on Monday, but the trial of Elizabeth Johnson of Tempe — Baby Gabriel’s mother, who took him to San Antonio in the midst of a custody battle in December 2009 — isn’t scheduled to begin until September.

Johnson will, however, be in court for a hearing Monday — the same day her estranged boyfriend and Gabriel’s father, Logan McQueary of Gilbert, will make his initial appearance in court on an unrelated charge of trafficking stolen property.

In a case that has received national attention, a phone message recording has Johnson at one point saying she killed Gabriel and threw his body in a dumpster, while she later stated she instead gave him away to a couple she didn’t know in San Antonio. Through it all, Johnson has maintained that Smith, who was interested in adopting Gabriel, facilitated the hand-off of the child — an accusation Smith said is not true.

Johnson, 25, is charged with kidnapping, child abuse, custodial interference and conspiracy to commit custodial interference, and has remained incarcerated in a Maricopa County jail on a $1.2 million cash bond for more than two years, since her arrest in late December 2009.

Marc Victor, Johnson’s latest attorney, told the Tribune that during the hearing on Monday involving Johnson, he may see the outcome of a motion that he filed with Judge Paul McMurdie. The motion was to determine what kind of information a jury should know heading into her trial, or the remedies put in place involving an ocurrence when Johnson was questioned by authorities without her attorney present.

Victor, like Johnson’s past attorneys, contends that Johnson’s 6th Amendment rights were violated in May 2010 when San Antonio police Detective Jesus Salame questioned Johnson without her attorneys present. During the questioning, Johnson reportedly said for a second time that she killed Gabriel. However, Nick Alcock, Johnson’s attorney at the time, got wind that the interview was in process, stopped it and contended Johnson’s rights were violated.

And Although McMurdie previously ruled that Johnson’s 6th Amendment rights were violated to some extent, he made it clear that it wasn’t to the point that the case against her would be dismissed or enough to warrant her release from jail.

“I think there should be more of a remedy or sanction other than suppressing the statement he (Salame) illegally obtained,” Victor said. “We don’t think that the case is likely to be dismissed, but we’d like to see it dismissed and her release from jail. We’d also like to see the methods limited in selecting a jury and that they be instructed that the state allowed Elizabeth’s rights to be violated when they allowed the detective to question her at the jail.”

Monday’s proceeding, an oral argument, will be the last involving Johnson to be heard before McMurdie. McMurdie is rotating off the criminal bench in June to preside over county family court proceedings and his criminal cases are being reassigned to other judges, according to McMurdie’s office. After Monday, Kreamer also will begin presiding over Johnson’s case.

Johnson, who has been uncooperative with previous attorneys, currently is deemed competent to stand trial in connection to the disappearance of her son.

“She accepts and understands the situation,” Victor said. “She is looking forward to her day in court.”

If convicted on the charges, Johnson could face anywhere from seven months in jail to 20 years in prison, according to the Maricopa County Prosecutor’s Office.

Meanwhile, Smith’s trial is expected to continue next week.

Smith’s attorney, Anne Phillips, could not be reached for comment.

Through it all, McQueary and his family have said the importance of Gabriel’s well-being and whereabouts — he disappeared at 7 months and would be turning 3 years old next month — have been lost throughout the course of the court proceedings.

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