Trail’s attorney: motion preserves appeal rights
Last week, Aubrey Trail was convicted in the first degree murder of Lincoln woman Sydney Loofe in 2017.
On Wednesday, his defense team filed a motion for a new trial.
Channel 8 Eyewitness News talked to Trail’s defense attorney Joe Murray and said this doesn’t mean Trail is going to get a new trial. He said they’re simply laying the groundwork for future appeals.
“The whole purpose of this motion is just to preserve our rights for appeal and to be able to bring up various issues on appeal,” Murray said over the phone.
One of those issues is the judge not granting a mistrial after Trail sliced his own throat in the courtroom.
Murray said the general rule is a defendant can not do anything that would result in a mistrial, but that this incident is unique.
“We have found cases in other jurisdictions which say that if the action taken is basically beyond the pale — something they did, something no one expected, no one had ever contemplated — then there is authority for granting a mistrial,” he said.
He said he doesn’t know of any circumstances similar to Trail’s throat cutting, so they should’ve been granted a mistrial.
Murray said another issue is Sydney Loofe’s mother, Susan, wasn’t sequestered despite being a witness.
“All the witnesses were sequestered and were required to remain outside the courtroom until the conclusion of the trial or until they were released and Mrs. Loofe was not released but was allowed to remain in the courtroom,” he said.
Murray said they’re also investigating jury misconduct, but didn’t want to go into specifics.
Before any appeals can be heard, a three–judge panel must first decide if Trail qualifies for the death penalty.
No word yet on when that will be.
The request was filed Wednesday in Saline County District Court. Trail believes his rights were violated and lists five reasons in the documents to support his claim:
1. Irregularity in the proceedings of the court, or of the prosecuting attorney, or the witnesses for the state or in any order of the court or abuse discretion by which defendant was prevented from having a fair trial. Specific items include the Court’s decision to allow gruesome photographs which unfairly prejudiced the jury, the Court’s denial of defendant’s pretrial motion to exclude evidence of Home Depot purchases and the Court’s denial of the defendant’s motion for mistrial after the defendant sliced his throat with a razor in front of the jury.
2. Misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state.
3. Accident or surprise which ordinary prudence could not have guarded against.
4. The verdict is not sustained by sufficient evidence or is contrary to law, as admitted by the State of Nebraska at closing argument, when the prosecuting attorney stated that they had no evidence and no knowledge as to who strangled the victim.
5. Error of law occurring at trial.
