PHOENIX -- With the jury off Monday morning, Elizabeth Johnson's attorney, Marc Victor, made his appeal to drop the kidnapping charge against her.
He argued that two factors that must be proved in a kidnapping case don't apply to the mother of missing Baby Gabriel. First, the state has to prove she restrained the baby by keeping him away from his father, Logan McQueary. Johnson's attorney used texts from Johnson saying she killed Gabriel to bolster his argument.
"I think, by the way, there is evidence to the contrary of this, but imagine she actually did kill the baby. There's no kidnapping at that point, Judge," Victor said. "You can't have a kidnapping of a dead person."
Second, the state would have to prove that Johnson wanted to scare McQueary into thinking there was an imminent threat to Gabriel's physical safety.
"So, when she very clearly says, 'I killed him,' that could mean that she was intending to say, 'I'm planning to kill him in the future?' It doesn't make sense Judge!" Victor said. "It's English!"
The judge disagreed. So did the attorneys for the state, arguing they had enough to prosecute for kidnapping.
"Whether she killed him or whether she gave him away to another couple, she did it without the father's consent," Elisa Ramunno said. "That was restraint within the meaning of the statute."
State's attorneys cited other cases supporting their argument. The judge said he'll study it all before making his decision before the start of court on Tuesday.