Baby Gabriel Case

Defense files motion to dismiss kidnapping charge of Baby Gabriel

Defense attorney Marc Victor filed amotion Friday to dismiss the kidnapping charge against Elizabeth Johnson for a lack of jurisdiction.

Victor wrote that Arizona does not have jurisdiction because none of the acts of kidnapping occurred in Arizona, since Johnson had legal custody of Gabriel when she left Arizona under the shared custody agreement she had with Gabriel’s father Logan McQueary. You can read the full motion in our Court Docs section.

The motion was filed four days before the defense was supposed to present their case in the kidnapping and custodial interference trial in Maricopa County Superior Court. The prosecution rested its case on October 3 after calling 29 witnesses and playing several audio recordings. The trial is set to resume Tuesday, October 16.

In the motion Victor asserts that Gabriel was not “restrained” until it was time for McQueary’s visitation under the custody sharing agreement, and that didn’t happen until Elizabeth and Gabriel were in Texas. He also wrote that Johnson did not have the intent to place McQueary in fear of imminent harm to Gabriel while in Arizona because Johnson was in Texas when she texted McQueary she killed Gabriel, and McQueary repeatedly said in recordings that he didn’t believe her. Victor alleges these are the requirements for Arizona to have jurisdiction for a kidnapping claim and that neither are met.

Along with his motion to dismiss Victor also filed a motion for acquittal.

The prosecution will file a response, according to a spokesperson for the Maricopa County Attorney’s Office, but no timetable was given. Judge Joseph Kramer will then rule on the motion.

Baby Gabriel has yet to be found. He has been missing since December 2009. He was eight months old at the time of his disappearance and was last seen at a motel in San Antonio, TX. Johnson’s story has changed, but she now says she gave Gabriel to a couple she met in a park in San Antonio but has no information on the identity of the couple. She initially told the baby’s father she killed Gabriel and threw his little blue body in a trash can.

Ryan Kerns, Esq., Wild About Trial

Copyright 2012 Wild About Trial. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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