In less than two weeks, an attorney representing the Tempe mother of missing "Baby Gabriel" Johnson will argue before a Maricopa County Superior Court judge and prosecutors to drop the charges against her and dismiss the case.
Elizabeth Johnson, who told authorities she gave her son away, has also said that she killed him.
On March 1, Attorney Daniel Raynak plans to pick up where Johnson's former attorney Nicholas Alcock left off in contending that her Sixth Amendment rights were violated when Jesus Salame, a San Antonio police detective, interviewed her in jail without her legal counsel present.
For more than a year, Johnson, 24, has remained incarcerated in the Maricopa County Estrella Jail on a $1.1 million cash bond on charges of kidnapping, child abuse, custodial interference and conspiracy to commit custodial interference in connection to Gabriel's disappearance in San Antonio on Dec. 26, 2009.
In mid-December of that year, Johnson drove to San Antonio with Gabriel while she was in the midst of a custody battle with Logan McQueary of Gilbert, her estranged boyfriend and father of Gabriel. After arriving in San Antonio, she stayed at a Homegate Inn and Suites motel. On Dec. 27, Johnson told McQueary via text message and a cell phone telephone call that she killed Gabriel, stuffed his body in a diaper bag and threw him in a dumpster. Then, three days later on Dec. 30 when Johnson was arrested in Miami Beach, Fla., she told authorities that she gave Gabriel to a couple at the motel a day after she met them at a park, according to court documents.
Tammi Peters Smith of Scottsdale, who once was interested in adopting the boy, is charged with forgery and conspiracy to commit custodial interference in connection to the case. Johnson claims that Smith arranged for her to give Gabriel to a couple she didn't know at a park in San Antonio. On Monday, Maricopa County Superior Court Judge Paul McMurdie denied Smith's motion to have her case heard before a new grand jury.
Johnson's grandfather, Robert Johnson of Scottsdale, said Elizabeth calls him almost every day, and she is optimistic that the case against her will be dismissed.
"That's no surprise," he said. "Personally, I would like to see that happen, but I think the judge is going to have a helluva hard time dismissing the case on a technicality when they don't know where the baby is. If Elizabeth's constitutional rights were violated, does that override the fact that they still don't know where the baby is?"
He added, "Elizabeth always said that Tammi orchestrated the whole thing and she would be the best one to talk to. I did not believe or understand this in the beginning, but Tammi's in trouble, too - and I think she knows where the baby is."
If alive, Gabriel would be 21 months old.
Raynak is waiting to hear whether a judge in Texas will authorize an out-of-state subpoena for Salame to appear as a key witness so the case can be dismissed, contending that he tainted the case. But Raynak told the Tribune on Tuesday he is willing to go to a Texas courtroom to argue his point.
Raynak also said that Salame has declined to be interviewed, and is unwilling to come to Arizona to testify unless subpoened.
"We'll see," Raynak said. "So far, he (Salame) hasn't been too cooperative. "I think what he did was outrageous and something the court should look at closely."