Judge: Baby Gabriel's mom will stay in jail

Posted: Updated:
Elizabeth Johnson, who was present in court but silent Thursday morning, has been in jail for nearly three years. By Catherine Holland Elizabeth Johnson, who was present in court but silent Thursday morning, has been in jail for nearly three years. By Catherine Holland

PHOENIX -- Baby Gabriel's mother was in court Thursday morning, hoping that she would be released from jail until her sentencing.

Judge Joseph Kreamer said that wasn't going to happen, explaining that the application of Rule 7.2c of Arizona's Rules of Criminal Procedures renders Elizabeth Johnson "non-bondable."

According to Rule 7.2c, "After a person has been convicted of any offense for which the person will in all reasonable probability suffer a sentence of imprisonment, the person shall not be released on bail or on the person's own recognizance ...."

Kreamer cited the jury's conviction on multiple felonies with aggravating factors, going on to say that he thinks "in all reasonable probability" that Johnson will get prison time.

Elizabeth's lawyer, Marc Victor, argued that Johnson's sentence could amount to time served. He also said Johnson could conceivably get probation for each of her convictions. Probation for Johnson has been his goal since he took on her case.

"Beating the kidnapping charges means, at the end of the day, she's eligible for probation on everything else," Victor told 3TV's Ryan O'Donnell less than 24 hours after the verdict was announced.

During Thursday's court hearing, Victor said people who have pleaded guilty to charges similar to those on which Johnson was convicted were usually released on their own recognizance.

"You haven't heard 'boo' from the defense in terms of mitigating factors," Victor said to Kreamer. "You could sit there right now and know, in your head, that there probably will be several mitigating factors that you will likely find, even without Elizabeth Johnson saying one word to the court. We know it's all in how you weigh it, Judge.

"At this point, right now, it's not appropriate for you to say there is a reasonable probability of prison because the way the offense sits right now, prison is not required."

Kreamer didn't disagree.

"I understand what you're saying," he replied. "But under the language of the rule from my perspective, the rule still applies. ... [Taking everything into account] I can see me giving her consecutive prison and giving her more time than she's spent. ...

"I want to make it very clear to you and to Miss Johnson I haven't made the determination yet," Kreamer continued. "I understand, based on my knowledge of the case, that there could be substantial mitigation presented. I have a duty and will weigh that. ... But as we stand right now under 7.2c, under that standard, she's non-bondable from my perspective."

Victor pressed his argument, but Kreamer was not swayed.

"You may be able to convince me that at the end of the day, at the end of sentencing, she might not get more time. I don't know, but right now I'm not going there," he said.

Johnson, who was present in court but silent, has been in jail for nearly three years. On Oct. 18, a jury convicted her on three charges in connection with the December 2009 disappearance of her then 8-month-old son, Gabriel Johnson. The jury chose not to convict her of the most serious charge -- kidnapping -- opting instead for the lesser charge of unlawful imprisonment.

Johnson, who chatted briefly with her defense team before she was escorted from the courtroom, is facing between two and nine years behind bars, but her lawyer says he will fight for probation.

Kreamer -- who handled the sentencing of Tammi Smith, the woman who wanted to adopt Gabriel, in July -- set Johnson's sentencing hearing for Dec. 7.