Judge tosses evidence in 'Baby Gabriel' case - CBS 5 - KPHO

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Judge tosses evidence in 'Baby Gabriel' case

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Elizabeth Johnson, center Elizabeth Johnson, center
PHOENIX (CBS5/AP) -

A key piece of evidence in the trial of the mother of an Arizona baby missing for more than two years was thrown out of court early Monday morning.

Twenty-five-year-old Elizabeth Johnson has pleaded not guilty to charges of child abuse, kidnapping and custodial interference in the case of her missing son, Gabriel, who was 8 months old when he went missing.

Johnson, of Tempe, has been jailed without bond since January 2010, a month after her son disappeared in Texas.

On Monday, Maricopa County Superior Court Judge Paul McMurdie ruled that admissions Johnson made about killing her son to a detective from San Antonio, TX, in a Phoenix jailhouse interview in May of 2010 violated her Sixth Amendment rights because she was questioned without an attorney present. Her attorneys also didn't know the interview was going to take place.

There was also some question as to whether a detective from another state has the legal right to question a suspect about a case in Arizona. The ruling means the statements Johnson made to the detective can never be introduced in court. 

Also, Victor said the detective abused his power to convince Johnson that he was working for her and not the state of Arizona.

"She could even testify and say something radically different and they still couldn't use that statement to impeach her," said her attorney, Marc Victor.

Victor said the state can only now rely on physical evidence in the case.

He called the ruling a "big victory" for him and his client.

McMurdie declined Johnson's request to dismiss the case based on the constitutional violation.

McMurdie is allowing Victor to work with the jail about changing the requirements for Johnson during jailhouse interviews. 

Johnson is shackled by her hands, feet and crotch for interviews now.  Victor said he feels the confinement restricts her comfort level during their meetings.  The judge is allowing the Victor to seek some release of the shackles, hoping that will ease Johnson's nerves.

 Victor is Johnson's fourth attorney, but he said he is confident that he will be her last. 

Johnson first said she smothered Gabriel and put him in the trash. She later recanted and said she gave the baby to a couple in San Antonio.

The baby has never been found and police still don't know if he's dead or alive.

Johnson had been declared mentally unfit for trial but a psychologist said in December that she is now competent.

Copyright 2012 CBS 5 (Meredith Corporation). All rights reserved. The Associated Press contributed to this report.

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READ: Baby Gabriel's father pleads guilty to theft (4/16/2012) Judge tosses evidence in 'Baby Gabriel' case (4/16/2012) Father of missing Arizona baby to testify (4/12/2012) 2 women about to face More>>

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