Return to Transcripts main page


Jaw-Dropping Verdict for Elizabeth Johnson

Aired October 18, 2012 - 19:00   ET


JANE VELEZ-MITCHELL, HOST: This is absolutely unbelievable news. It is happening as we speak. Court is in session.

Tonight, breaking news in the baby Gabriel trial. The jury has reached a verdict. Will this mother be heading to prison? And will we ever find out where this darling little boy actually is? Also, these stories.


VELEZ-MITCHELL (voice-over): Tonight, a frantic search heats up for a beautiful missing Starbucks barista. Twenty-one-year-old Whitney Heichel kisses her husband and leaves for work, just a five-minute drive. But she never makes it there. Her SUV turns up in a parking lot with a smashed window.

Is surveillance video of her car at a gas station the best clue in the desperate race to find Whitney? We`re investigating, and I`m taking your calls.

And could secrets spill in court about superstar Britney Spears. Her former manager says the singer and her family unfairly blamed him for Britney`s very public meltdown four years ago. Just as "The X Factor" judge is finally back on top raking in the big bucks, will this trial reveal what went on behind closed doors during her darkest days?


VELEZ-MITCHELL: Tonight, breaking news. As we speak, court is in session. Just moments ago the shocking baby Gabriel kidnapping trial verdict came down. Listen to it. We`re going to listen to it ourselves for the first time right now together with you. And then we`re going to analyze it. Check it out.


UNIDENTIFIED FEMALE: As to count one, kidnapping, the verdict form is blank. Verdict as to count one, lesser included. Having found the defendant not guilty of kidnapping, or after full and careful consideration of the facts, being unable to agree on whether to find the defendant guilty or not guilty of kidnapping, we the jury, duly impanelled and sworn in the above entitled action, upon our oaths do find the defendant, Elizabeth Johnson, as to the offense of unlawful imprisonment, guilty. We further find that this offense is a domestic violence offense.


VELEZ-MITCHELL: Oh, my gosh. This is the biggest jaw-dropper since the Casey Anthony verdict. Because, yes, guilty on unlawful imprisonment, yes, guilty, conspiracy to commit custodial interference, but the big charge was kidnapping and you just heard it The verdict form was left blank.

So essentially, she is not convicted of kidnapping, even though her precious baby disappeared on her watch. Even though she called the father of the child and said, "I killed the child. I suffocated the child until he was blue, and I threw him in the Dumpster." Even though she then told police a totally different story: "Oh, no, I gave this baby away to a mystery couple in San Antonio." And despite all that, despite all that, not guilty on kidnapping?

Even though she left her state with the child, which was not approved by the court, because a judge in Arizona back in 2009 right before this precious child disappeared had just awarded her and the father joint custody. That`s why she takes off with the baby and goes to San Antonio, Texas, the last place this child was seen. Not guilty of kidnapping. The verdict form left blank. Unbelievable.

Baby Gabe`s mom, 26-year-old Elizabeth Johnson, had been charged with -- the big charge was kidnapping along with custodial interference. She had been facing up to 27.5 years in prison. She was just convicted of the lesser charges.

Baby Gabriel, nobody knows where he is tonight. Nobody knows whether he is dead or alive. Imagine what the father of this child is going through. And right now the dad`s father is on the witness stand, talking about aggravating circumstances, trying to convince the judge to throw the book at this woman in terms of a sentence for whatever she was found guilty of.

I have got to go to Wendy Murphy, former prosecutor. I`m shocked. Everybody said this was an open and shut case. Everybody said that her defense attorney did a terrible job because he called no defense witnesses. And yet she is -- kidnapping the verdict form is left blank.

WENDY MURPHY, FORMER PROSECUTOR: Yes. You know, the only thing I can say here is that kidnapping is a very specific charge. It`s considered a hard charge to prove in a case like this because you have to prove not only there was the taking away but that it was for criminal purpose. This is a very confusing case, Jane. Because we don`t have the child. We don`t have the body.

And the mother`s confessions, unlike so many cases when you have a confession to a particular criminal act, this is a case where the defendant said "I killed him and did all sorts of gruesome things to the child," and, "Oops, no, I didn`t kill him. I gave him away to some unnamed couple."

The problem here is, how`s a jury supposed to figure out exactly what happened beyond a reasonable doubt if, really, the only evidence they have are her two conflicting confessions? Neither of which necessarily is sufficient to prove kidnapping.

VELEZ-MITCHELL: You know, they say no body, no case. And that usually applies to a murder case. But in this case I agree with you, Wendy Murphy. The word "kidnapping" doesn`t seem to jibe with a child that just vanishes into thin air. And I think the jury was confused.

Even though baby Gabriel has literally not been seen in three years and we don`t know if he`s dead or alive, even though this woman, this defendant, Elizabeth Johnson, sent texts and made horrific phone calls to her ex, Logan, telling the father of the child that she had killed her child -- their child. Listen to that confession.


ELIZABETH JOHNSON, MOTHER OF GABRIEL: I suffocated him and he turned blue and I put him in a diaper bag and I put him in the trash can.

LOGAN MCQUEARY, FATHER OF GABRIEL: You did not hurt Gabriel.

JOHNSON: Yes, I did. I suffocated him. You knew I would do it and you pushed me anyway.


VELEZ-MITCHELL: Well, first of all, I want to tell everybody, call. We want to get it. It was breaking news. We didn`t put up a phone, but let`s put up the phone. We want to hear what you at home -- 1-877-586-7297 -- are thinking about this verdict.

And, again, I got to tell you, Ed Miller, investigative reporter, you`ve done many, many missing children`s cases for "America`s Most Wanted." I am sick for the family of the father right now. Sick.

ED MILLER, INVESTIGATOR REPORTER: Yes. You know what? This is why people hate attorneys so much. And I come from a whole family of attorneys. They play with the language and ignore the bigger picture, the common sense picture. Where is the baby?

Her attorney said and I just want to quote for you, her attorney said "the state has to prove that she restrained the baby by keeping him away from his father." It sounds like that to me. She took him to San Antonio. It`s a baby. He can`t get on a Greyhound bus and go back to see dad. It`s an 8-month-old baby.

So, yes, she restrained the baby because it is a baby and she took him to San Antonio. Sounds like perfect logic to me. So you have to wonder how the attorney was able to convince the jury, by playing with the language a little bit, that she didn`t really restrain the baby from the father.

VELEZ-MITCHELL: Well, this was one of the most controversial defense strategies ever. Maybe since Jose Baez and Casey Anthony. Because this guy presented no defense witnesses. It was like he was everybody thought maybe asleep at the wheel.

And then during the closing arguments her defense attorney compares her to the guy who shot John F. Kennedy. Crazy. But for some reason it worked. Listen to this.


If she had been charged with the John F. Kennedy assassination, you`d convict her. There`s nothing I can get you to do to focus on the facts. Just because you don`t like her and you will be ruled by your passions. You will be ruled, guided by, driven by your anger.


VELEZ-MITCHELL: Well, there must have been a method to his madness. Michael Board, WOAI radio reporter, you`re in San Antonio, which has also been riveted -- the people have been riveted because that`s the last place where this precious boy was seen. Your reaction to this verdict.

MICHAEL BOARD, WOAI REPORTER (VIA PHONE): You know, what`s absolutely outrageous about this is because of the charges she was convicted. the maximum sentences are so low, you`ll be shocked by this. It could -- there`s a very real possibility that she`ll just be given time served and let out.

You`ll remember, she went to prison in January 2010. That means she`s spent, well, almost three years behind bars waiting for this verdict today. The maximum sentences on all these convictions are only about four years. So amazingly there`s a very real possibility that they could just let her out on time served, even though the baby that she said over the phone "I killed" is still missing.

VELEZ-MITCHELL: It`s unbelievable. And now they move very swiftly to what appears to be the sentencing phase where they consider aggravating and mitigating factors. As for the aggravating factors, grandfather of this precious boy who must be devastated right now is on the witness stand.

This is the dad`s father, Logan McQueary`s dad. There he is taking the stand trying to convince the judge, oh, please, do what you can to sentence this woman. But as you just heard from Michael Board, this is a paltry, paltry sentence. The maximum is paltry. It could have been if she was convicted of kidnapping, 27 years behind bars. She is 26, so she would have been 53 when she got out. Still young enough to live her life. But at least there would be some justice for this child.

I think that this is an absolute outrage. I want to hear from you on the other side. Give me a call: 1-888-JVM-SAYS. And then we`re going to break and we`ll take your calls on the other side.



UNIDENTIFIED FEMALE: Verdict as to count one kidnapping, the verdict form is blank. Verdict as to count one, lesser included. Having found the defendant not guilty of kidnapping, or after full and careful consideration of the facts being unable to agree on whether to find the defendant guilty or not guilty of kidnapping, we the jury duly impanelled and sworn in the above entitle action upon our oaths do find the defendant, Elizabeth Johnson, as to the offense of unlawful imprisonment, guilty.


VELEZ-MITCHELL: So this young woman, whose precious 8-month-old child disappeared on her watch, who she told the father of the child that she had killed, who she told police she had given away to a mystery couple, could walk because she wasn`t found guilty of the most serious charge, kidnapping. Which I consider an outrage.

This is the biggest shock since the Casey Anthony case in my opinion.

And here`s Tammi Smith, her friend, a woman that she met at an airport waiting for a flight and who was obsessed, allegedly, with adoption and who was convicted of forging some papers. The defense threw this woman under the bus. The defense kept saying, oh, Tammi, Tammi, Tammi. So listen to this heated jailhouse exchange between the defendant, Elizabeth, and this former friend Tammi Smith.


TAMMI SMITH, FRIEND OF ELIZABETH: So when you called these people you said on the third day you gave them the baby. So when you called them, what did you say?

JOHNSON: I never called them. You called them. It was all set up through you. I did everything you told me to do.

SMITH: Oh, you are a liar. A liar.

JOHNSON: You are. I`ve seen the interviews and everything you`ve been saying and doing and throwing people under the bus, and you`ve thrown me under the bus.

SMITH: Elizabeth, you belong under the bus. You gave your baby away, and you`re not telling anyone...

JOHNSON: To you. To you.


VELEZ-MITCHELL: All right. We`ve got a caller just in. Diane, I don`t know where you`re from, but Diane, your question. Oh, you`re from Virginia. Your question or thought, Diane from Virginia.

CALLER: It`s not really a question, it`s more of a statement. I`m just ashamed of the judicial system and that these attorneys should really be ashamed of themselves for representing people like this.

And I sometimes wonder, you know, what kind of jurors do they pick that, you know, can pass down these verdicts? It`s like the Casey Anthony thing. I don`t understand.

VELEZ-MITCHELL: It is. And look at this woman`s face, this defendant`s face. Come on, she`s pretty.

And, Wendy Murphy, former prosecutor, law professor at New England Law, Boston, I don`t care what you say, subconsciously there is something about a pretty defendant that makes them harder to convict.

MURPHY: Absolutely. I wrote about this in my book "And Justice for Some," the "I`m not the type" defense. It`s really a very difficult situation for prosecutors, because jurors look at someone who looks nice and seems like a good person. And they`re afraid to think that that person could be so violent and abusive to a defenseless child. It scares them.

And believe it or not, that translates sometimes into reasonable doubt, because they can`t let themselves believe that a person could be so evil.

VELEZ-MITCHELL: Michael Board, you`re in San Antonio, is the investigation into finding this child where vanished in San Antonio going to continue?

BOARD: Yes, it is. And according to police that I spoke to recently, they tell me they still believe that baby Gabriel is alive and out there somewhere. They are not handling this as a murder case. They are handling this as a missing persons case.

They say until they find hard core evidence out there that this baby was -- that any harm was done to this baby, that they`ll carry this as a missing persons case.

And incidentally because this case in Arizona is now finished, if in the future somebody decided to charge Elizabeth Johnson with murder, it would have to be in San Antonio, because this is the last place that baby Gabriel was found.

VELEZ-MITCHELL: And look at this defendant. Wearing the same kind of collar that Casey Anthony wore and the hair pulled back. Remember? Remember? I want to do a split screen. More on the other side.



UNIDENTIFIED MALE: Gabriel was daddy`s boy. When Logan was around, he wanted Daddy to hold him. He wanted Daddy to play with him. You know, Daddy was his world.


VELEZ-MITCHELL: That woman you`re looking at right there, 26-year-old Elizabeth Johnson, they left the verdict form blank on the most serious charge, kidnapping. And we`re hearing that, with the other two charges essentially not having that much time attached to them, she could be out in short order.

Now, explain to us what`s going on, Wendy Murphy. I`m just telling you what they`re telling me in my ear. They`re in the aggravation phase. The grandfather of the missing child took the stand. You just heard him. And now the jury has gone back into the jury room. Give us a sense of what could be going on?

MURPHY: Well, look, whatever the range of punishment options are, it`s now the time to make the decision, should she receive a punishment on the high end or the low end? People will get up and say she`s a horrible person, did a horrible thing, she was a bad mother, all the horrible things she did in her life in the capacity as both a parent and a citizen.

And then there may be people that get up there and take the stand and say, no, there are lots of mitigating factors. She had a horrible marriage. This man was, you know, abusive or threatening or whatever and all that she did...

VELEZ-MITCHELL: Well, you know what, Wendy? I have to jump in and say that this father seems like a great guy who was actually a wonderful dad.

MURPHY: I`m not -- I`m not saying otherwise.

VELEZ-MITCHELL: I know. Let me...

MURPHY: I`m talking about who may take the stand and say things in her behalf...


MURPHY: ... to suggest that, you know, there was a stressful marriage here, and she wasn`t the only one to blame.

VELEZ-MITCHELL: Exactly. Ed Miller -- I understand what you were saying. But Ed Miller, what now? We do not know. This poor grandfather, the father of the father, does not know what happened to his precious grandson. What now?

MILLER: Well, absolutely. Well, first of all, what now is they`ll be talking about this in law schools all over the country because you`re absolutely right. This is about as shocking as you can get. And it is almost identical to the Casey Anthony case.

In terms of what happens now, as you -- as you heard in San Antonio, they continue to investigate this as if the child is alive. But her own attorney, again I want to quote to you, her own attorney said -- he said, "Let`s assume -- let`s imagine she actually did kill the baby. There`s no kidnapping at that point. You cannot have a kidnapping of a dead person." So he was actually telling that to the jury.

VELEZ-MITCHELL: Yes. It`s a word game. Semantics.


VELEZ-MITCHELL: Lena -- Lena Jacobson, field producer, "In Session." You just got out of court. What was the reaction to this stunning verdict?

LENA JACOBSON, FIELD PRODUCER, TRUTV`S "IN SESSION" (via phone): You know, Elizabeth Johnson didn`t have much of a reaction, Jane. And I think I know why. The judge showed the verdict forms to the attorneys ahead of time.

I think they were a little concerned about the blank box for kidnapping. The jury hung. They hadn`t filled that in either way. And so the attorneys knew about the verdict. And let me tell you, when they came out of chambers, it was easy to read their body language. I had a feeling it was going to be a not guilty on kidnapping.

So Elizabeth sat there, you know, in pretty good spirits. I didn`t see much reaction from her at all, Jane.

VELEZ-MITCHELL: But what about the family of Logan McQueary, the baby`s father? I saw the grandfather take the stand. I mean, I am shocked, Lena. I don`t know about anybody else, although I should never be shocked. I`ve seen too many of these cases that I`ve covered where things -- there`s the father. Look at this guy. He has been through hell. And now it`s like he`s had sand kicked in his face.

Lena, your thoughts on why -- why not guilty on kidnapping.

JACOBSON: Well, you know, you`ve talked about the reasons that the defense attorney, Mark Victor, laid out in his closing arguments. He said look at the elements of the crime. The prosecution cannot prove these elements.

And frankly, Jane, you know, I like this prosecution team, but they didn`t give the jury a reason to find her guilty of kidnapping. They never really effectively countered Mark Victor`s argument. And as we know, the jury was hung. It could, of course, be one juror saying not guilty on kidnapping. We don`t know that yet. Hopefully, we`ll find out. I don`t think they give the jury a hook to hang their hat on, so to speak.

VELEZ-MITCHELL: Well, on the other side we`re going to analyze that. What does that mean, the child has vanished into thin air? If you can`t charge somebody with murder because there`s no body, then kidnapping is the next best thing. Why is that so hard to process?

More on the other side.



UNIDENTIFIED FEMALE: Verdict as to count one, kidnapping, the verdict form is blank. Verdict as to count one, lesser included. Having found the defendant not guilty of kidnapping, or after full and careful consideration of the facts being unable to agree on whether to find the defendant guilty or not guilty of kidnapping, we the jury, duly impanelled and sworn in the above entitled action, upon our oaths, do find the defendant Elizabeth Johnson, as to the offense of unlawful imprisonment, guilty. We further find that this offense...


VELEZ-MITCHELL: This is a shocking verdict. In my opinion the most shocking verdict since the Casey Anthony "not guilty," because this young woman, 26-year-old Elizabeth Johnson, whose baby disappeared on her watch, was just found essentially not guilty of kidnapping the child. The verdict form was left blank when it came to kidnapping. She was found guilty of some lesser charges.

But as we`ve heard reporters covering this case say, they don`t have much time attached. And she could walk in very short order. So this is a complete shocker.

And you see what she`s wearing there. She`s wearing that little button-down shirt and hair pulled back. Take a look at who that reminds you of. Casey Anthony, also around the same age, hair pulled back, dressed conservatively. Well, we know that both of these ladies have dressed in a very different fashion.

You can also see that both of these young women are beautiful. They are physically attractive young women. And look at how they are dressed. Almost like they are wearing the same uniform.

Wendy Murphy, former prosecutor, you`ve got to wonder how much the subliminal impacts these jurors. Because, again, with a missing eight- month-old baby who disappeared three years ago and her confession on tape that she killed the child, even though she told cops another story, defendants often change their story. They confess and then they go, oops, never mind.

How is it possible that they found her not guilty of kidnapping? What did our reporter who was just in court who raced out and then has raced back in because there`s more breaking news, which we`ll bring you in a second -- what do you think she meant when she said the jurors had nothing to hang their hat on?

WENDY MURPHY, FORMER PROSECUTOR: Yes. I mean, here`s the interesting thing. You can`t really get angry with the jurors about this one because kidnapping is a specific offense with particular requirements, right. We may feel like this, of course, is a kidnapping. But here`s the thing, not only do you have to show that she restrained or took the child away which we can clearly infer from the child`s absence, so that element of the crime is easy to prove, right?

But here`s the other thing. Let me read it to you. They had to prove -- the prosecution had to prove that she did it with the intent -- if the child was alive intent -- to create in the father fear that imminent harm was about to be caused to the child. There was no evidence of that. And - -


MURPHY: -- the defense attorney made the very solid argument that if the child was dead, you can`t have kidnapping because the law is very clear you cannot kidnap a dead child. Where is the evidence of imminent harm to the child if she indeed gave the child away, as she said? There`s no extra evidence that it was about to cause the child imminent harm.

VELEZ-MITCHELL: Well, my head`s spinning from that semantical quicksand.

MURPHY: But it`s the law.

VELEZ-MITCHELL: Let`s just listen -- can we recue the sound bite where she is confessing? Because the father of the child was so concerned he started tape recording their conversations.

So as soon as the judge in their custody battle says you guys have to share joint custody, this is back in 2009, this woman takes off with the 8- month-old baby from Arizona to San Antonio. She`s in a motel in San Antonio. This is the last the child is seen. And then she calls up the father of the child, her ex, who she`s obsessed with on some level. She`s I think upset, according to various witnesses that she lost him. Hell hath no fury like a woman scorned.

Now, let`s listen to what she tells that man and tell me if you wouldn`t vote guilty for kidnapping. Listen to this.


ELIZABETH JOHNSON, MOTHER OF BABY GABRIEL: I suffocated him and he turned blue and I put him in the diaper bag and put him in the trash can.


JOHNSON: Yes, I did. I suffocated him. You knew I would do it and you pushed me anyway.


VELEZ-MITCHELL: So where as you`re saying, well, killing somebody is not the same as kidnapping, but whereas I would counter if she left Arizona and went to San Antonio and then killed the child, there was a point at which before she killed the child, the child was in danger. So that would fit the criteria of the second half of the requirements for kidnapping.

MURPHY: You could make that argument. I mean I just don`t think there`s enough evidence on that fact beyond a reasonable doubt. I don`t see it. I mean, her confessions are inconsistent. And they`re not a lot. There`s not a ton of evidence there to prove kidnapping. That`s why they have lesser included offenses called unlawful imprisonment and custodial interference. Those are easy guilty`s in this case.

VELEZ-MITCHELL: I`m speechless because you`re the prosecutor.

But let me go to the phone lines. Mona, Arizona, you`re in the state where this extraordinary case is going down. Your question or thought, Mona, Arizona. Mona.

MONA, ARIZONA (via telephone): Yes. Hi.

VELEZ-MITCHELL: Yes. Your question or thought, Mona.

MONA: My thought is Texas is where she went. And Texas is where she went. She said that she had killed that baby and threw him in a dumpster. Texas done a massive search for that baby. They`ve dug up two parks, one last week. Will Texas be expediting her and charging her with anything? I hope so.

VELEZ-MITCHELL: Oh, excellent question. Ed Miller, is there possibility they could try her in a new jurisdiction? Or maybe we need to change -- we need to create a new charge for when somebody disappears.

I mean look -- you`ve got the Drew Peterson case with his fourth wife who vanished, he`s never been charged -- he`s never been charged in that case. There seems to be this growing sense that, wow, somebody vanishes as opposed to the body being found that essentially you can`t do anything with that.


No. You know what; I know what you said before that, you know, no body, you can`t really find somebody guilty of murder. But that`s not necessarily true anymore. I know for a fact. I`ve done a couple of cases where they never found the body and yet they found somebody guilty of not only kidnapping but of murder.

But in this particular case -- you know, I have great respect and admiration for Wendy Murphy -- but I repeat what I said before. This is why people hate attorneys so much because it`s all wacky. It`s upside down. You have to say two and two make four. She left -- she took the child to San Antonio. To me that says kidnapping. She wasn`t allowed to take the child. She took the child without permission of the dad. So, again, that says kidnapping to a whole lot of people.

And I really don`t understand what the jury was thinking in not putting two and two together and saying, well, you know what --

VELEZ-MITCHELL: I`ll tell you something else. I am not a lawyer. And I`ve been in so many of these courtrooms over more years than I care to admit where I am looking at the jury instructions and I`m like, what? I mean these jury instructions sometimes go on for 40 pages and you have to be a lawyer to understand them. They`re convoluted and I think in confusion there`s reasonable doubt.

And I`ve said it before, I have sat in more courtrooms where everybody around me is like he`s going down, Michael Jackson child molestation; Casey Anthony -- and always acquittal. More on the other side.


VELEZ-MITCHELL: We are providing live coverage now as it happens in court in Arizona. This woman, she was found guilty of three lesser charges that won`t give her a lot of time in prison, if at all. I mean she could - - we don`t know -- get out for time served. But she was not found guilty of the most serious charge, kidnapping, even though her eight-month-old vanished.



UNIDENTIFIED FEMALE: Where is Baby Gabriel?

UNIDENTIFIED MALE: The eight-month-old was last seen at a Texas motel back in 2009.

MCQUEARY: Where are you?

JOHNSON: I don`t exist anymore. I`m a ghost.

UNIDENTIFIED MALE: The boy`s mother, 23-year-old Elizabeth Johnson --


VELEZ-MITCHELL: And now that woman, 26-year-old Elizabeth Johnson, you are looking at her in court moments ago. In fact, she`s probably back right in that seat because they have just announced the verdict.

Remember, her precious eight-month-old boy disappeared on her watch. She took off from Arizona to San Antonio, told the baby`s father she killed the child. Told cops oh no, I gave him away to a mystery couple. Nevertheless the jury has just not convicted her of kidnapping. That was the most serious charge.

Now, they did convict her of three lesser charges, two regarding custodial interference and one regarding unlawful imprisonment. And they just announced moments ago that the prosecution did prove the aggravating factors in those three. So maybe the judge can throw the book. But, again, she would have gotten 27 years total if she had also been convicted of the kidnapping. And now some are saying you know how these lesser charges are, she could walk in short order, according to some observers.

Let`s go out to the phone lines -- Kevin, New York, your question or thought, Kevin.

KEVIN, NEW YORK (via telephone): Hi, Jane. How are you?

VELEZ-MITCHELL: Fine, thank you. Well, not so good now. I`m shaken by this.

KEVIN: Jane, I`ve got to be honest. I`ve had enough of this stuff going on today. I don`t want to hear from all of the people protecting these people`s rights. They need to start waterboarding these people. They need to start putting truth serum out there. They need to start getting answers.

When this lady said that she killed her baby, she`s subject to whatever treatment she needs to get to reveal where the baby is. This is not the first case where child predators killed these kids, they know they did, they won`t say where these bodies are. These people do not have the right to be protected. I`m sorry.

VELEZ-MITCHELL: You know, I would agree with you except for the waterboarding part. I think that what makes our country great is the fact that we have due process. And once we start doing something untoward to one person, it opens a Pandora`s Box to do it to an innocent person.

So I wouldn`t go that far but I understand your rage because I`m darn upset about it. Ed Miller, investigative reporter, nobody knows what happened to this baby. Imagine the grandfather -- imagine the father of this child. And we have a picture of him, Logan McQueary, a handsome young man who loved this child and wanted to take care of him.

This mother, just out of spite used this child as a pawn and took off from Arizona to San Antonio. There he is. Look at this man. He has his life ahead of him. But what life not knowing what happened to his son. It`s worse than finding your child dead.

MILLER: Absolutely.

VELEZ-MITCHELL: That you can never know what might have befallen, Ed.

MILLER: Absolutely. You know what; this goes back to the victims here, you know, because the victim is not necessarily just the baby. The victim is the father, the grandfather, all the relatives involved here. So you`re absolutely right.

Imagine how they must feel and how they must be, you know, what they want to say to the judge and what they want to say to the jury. I`d love to put him, the father, with the jury alone in a room together. Wouldn`t you love to hear what he has to say to them? Again, it just doesn`t make sense. It`s all so wacky.

And I go back to what I said before, is it the letter of the law or the spirit of the law? What do you really feel here? What are you really following, your heart or the letter of the law?

VELEZ-MITCHELL: Well, it`s also this crazy notion of reasonable doubt. Is the sun going to come up tomorrow? Well, I don`t know. That`s reasonable doubt. That`s not really what was intended. I think we`ve gotten to the other extreme when it comes to parsing out these legal terms. We are going to stay on top of this. We pray and hope -- our condolences to the family, the father of this child and his father and their whole family, we`re sorry that you had to go through this additional hell.

A waiter serving a woman who was clearly overweight and asking for dishes that are bad for her health -- the waiter questions her choices. Both the waiter and the woman are actors. But they want to see if other customers are going to get involved in this situation. What would you do? That`s the question in the new hit show "What would you do?" coming to HLN starting this Sunday.


JOHN QUINONES, HLN HOST: We`ve all seen it. Overweight people eating things they shouldn`t be eating and thought to ourselves, do they really need that?

UNIDENTIFIED MALE: That`s a lot of food. I`m just trying to make suggestions that are maybe a little healthier for you. That`s all.

QUINONES: This waiter, Jeremy, is recommending healthier options at our suggestion.

Here he comes. He`s coming in.

He`s an actor. And so is our customer, Katherine.

UNIDENTIFIED MALE: I got to tell you, I feel really bad about those chocolate chips are 250 calories.


UNIDENTIFIED MALE: If you want I can give you skim milk or something else. I`m just trying to -- I don`t feel right. I feel there`s an epidemic in our country.

UNIDENTIFIED FEMALE: Can you hear him?

QUINONES: This woman reaches out to Katherine telling her not to worry about the waiter.

UNIDENTIFIED FEMALE: He`s stupid. Just enjoy it.


UNIDENTIFIED FEMALE: You deserve to have a nice breakfast.


UNIDENTIFIED MALE: Can I take that for you, sir?

QUINONES: They`ve consoled Katherine, but will they say anything to the waiter?

UNIDENTIFIED MALE: Folks, thank you so much. Hope you have a healthy day.

QUINONES: Nothing is said when he clears their table. But when the check comes --

UNIDENTIFIED MALE: These fat people come in here and they order like six entrees.

UNIDENTIFIED MALE: It`s not your job to tell people how to be healthy. It`s insulting.

UNIDENTIFIED MALE: I`m just trying to help her.

UNIDENTIFIED MALE: You`re not helping. It`s not your job.


UNIDENTIFIED MALE: If I ran this place, you`d be fired in 30 seconds.


VELEZ-MITCHELL: Oh, he`s mad. "What would you do?" The show starts Sunday 9:00 p.m. Eastern. Hidden camera show hosted by John Quinones of ABC. A series in ethical dilemmas that will entertain you and make you think what would you do. Sunday night 9:00 Eastern; check it out here on HLN.


VELEZ-MITCHELL: More breaking news inside court in a second. But first, let`s throw in some pics -- pet pics. Gunnar by the pool. Love you, Gunnar. You know how to live. And Misty May is a gorgeous little kitty. What a tabby -- tabby-wabby. And, wow, Pop-Pop is a cowboy. I want to be your cowboy.



UNIDENTIFIED FEMALE: Verdict as to count one: kidnapping, the verdict form is blank. Verdict as to count one, lesser included. Having found the defendant not guilty of kidnapping, or after full and careful consideration of the facts, being unable to agree on whether to find the defendant guilty or not guilty of kidnapping, we the jury duly impaneled and sworn in the above entitled action upon our oaths do find the defendant Elizabeth Johnson as to the offense of unlawful imprisonment, guilty.


VELEZ-MITCHELL: Her child disappeared on her watch. She told one person she killed the child. She told others she gave the baby away. And she was found not guilty of kidnapping.

Straight out to Lena Jakobsson, field producer, "In Session". You just literally raced out of court to talk to us. Some people are saying, hey, with just unlawful imprisonment and two counts of custodial interference, she`s going to walk soon. What do you know?

LENA JAKOBSSON, FIELD PRODUCER, "IN SESSION": I know that she is probation eligible. She could indeed walk out without serving another day in prison. On the other hand, she could do, I think it is up to eight years in prison. She has already served almost three so it is not a whole lot of time.

If you look at Tammi Smith, of course, she did 30 days and had another 30 days deferred. So now it is in the hands of the judge. But you`re right. Johnson could serve no more jail time.

VELEZ-MITCHELL: Tell us about the jury because I`m shocked. Other people aren`t but I`m shocked that it wasn`t a common sense verdict like, ok, you have a child. You leave the state after the judge says you have to share custody with the ex you`re fighting with. The child vanishes. You tell him that you killed the child. You tell somebody else I gave the child away to a mystery couple who has never been found.

You can`t charge her with murder. Kidnapping is the next best thing. It`s common sense. But you`re saying that the state didn`t prove its case. Why?

JAKOBSSON: Well, they felt the state didn`t prove its case. I don`t really have an opinion either way. I`m just an onlooker. The jury I can tell you was very attentive. They took a lot of notes. They took a lot of careful notes during the defense closing argument when the whole issue of the elements of the crime was discussed. The fact that she no longer had the child when she told Logan McQueary she had killed him, so really, the defense attorney said this is not what the statute requires for kidnapping. You can`t find her guilty.

I saw the jurors taking careful notes, Jane, during that. They were very attentive. So I don`t think was a lack of paying attention that was the problem. Just a disagreement about what was proven.

VELEZ-MITCHELL: Ok. Robin, Kentucky. We have time for a quick comment. Quick comment, Robin Kentucky.

ROBIN, KENTUCKY (via telephone): yes, my opinion, I think they should keep her in prison until she tells whether the baby is alive or dead and where this child is at. I think she should have to set in there until she lets the father know where this child is at.

VELEZ-MITCHELL: I agree. More on the other side.



JOHNSON: I suffocated him and he turned blue and I put him in the diaper bag and I put him in the trash can.

MCQUEARY: You did not hurt Gabriel.

JOHNSON: Yes, I did. I suffocated him. You knew I would do it and you pushed me anyway.


VELEZ-MITCHELL: Elizabeth Johnson, the mother of that baby, the baby lost on her watch; she was found not guilty of kidnapping. Lena Jakobsson, field producer, "In Session", you`ve just run out of court. So what happens now? You`re saying she could get a maximum possibly of eight years. I understand that it is hard to always say, these sentencing guidelines are very complicated. She`s already served about three so she would probably do a max of five and when are they going to sentence her officially?

JAKOBSSON: Well, we don`t know. There`s a hearing set for November 1st where that will be discussed. The judge will hear any motions that come in between now and then and we may hear from witnesses as well when sentencing time comes but we don`t know exactly when that will happen.

VELEZ-MITCHELL: Give us a sense -- we only have about 30 seconds -- of what it was like in the courtroom from the spectators. As they leave, are there jaws dropping? Anybody shocked by this? Just me?

JAKOBSSON: I think a lot of people were shocked by this. Almost every seat was taken in that courtroom, mostly by the media. There were a lot of surprised people.

I`m standing outside the courtroom right now. there`s a bank of cameras here. Tammi Smith`s attorney and her husband`s attorney are both here as well. They`re curious to see --

VELEZ-MITCHELL: Got to leave it right there. Great work -- thank you, Lena.

Nancy next.