PHOENIX - As her trial wraps up, Elizabeth Johnson, the mother of Baby Gabriel, will not testify in her defense and closing arguments will begin Tuesday according to her attorney.
ABC15 has also learned Marc Victor filed several last minute motions he hopes will get his client out of jail.
In court documents filed Friday, Victor asked Johnson's trial judge to toss out the kidnapping charges against Johnson.
Johnson is on trial for kidnapping, custodial interference and conspiracy to commit custodial interference for keeping Gabriel away from his father, Logan McQueary.
The kidnapping charge is the most serious.
"It just doesn't add up to a kidnapping and so it shouldn't go to the jury," said Victor.
In the motion, Victor wrote:
The kidnapping charge in this case requires the State to prove, beyond a reasonable doubt, that Ms. Johnson 1) knowingly restrained Gabriel 2) while having the intent to place Mr. McQueary in reasonable apprehension of imminent physical injury to Gabriel.
"They key here is imminent physical injury to Gabriel, a physical injury that was about to happen," said Victor.
Prosecutors played phone calls and showed text messages from Johnson telling Gabriel's father, Logan McQueary, she killed their son but Johnson's attorney is now using that against the State.
"I killed him. Not I was planning on killing him or I'm thinking about killing him or I'm gonna kill him next week or something like that. What [this] amounts to [is] I already killed him which is not an imminent physical injury," said Victor.
If the judge is not convinced, Victor filed another motion arguing Johnson had legal custody of Gabriel when she took her son to Texas where he disappeared.
"In essence, the argument there is that even if there was a kidnapping it happened in Texas, it didn't happen in Arizona and so the kidnapping charge ought to be thrown out for lack of jurisdiction," said Victor.
Victor hopes focusing on a formality could free his client.
"It's not a kidnapping case. This is an ugly custodial interference case, a really ugly custodial interference case," said Victor.
Victor admits he does not think the judge will drop the kidnapping charges but, if it happened, Johnson would be parole eligible and could walk out of jail even if she's convicted of the two custodial interference charges.
ABC15 will be in court on Monday to cover the judge's decision on Victor's motions.