Judge dismisses Aubrey Trail’s motion to declare death penalty unconstitutional

A judge has dismissed a motion to declare the death penalty unconstitutional by a man convicted of killing a Lincoln woman.

District Court Judge Vicky Johnson on Friday submitted her dismissal of the motion by Aubrey Trail, who was found guilty in July of first-degree murder in the killing of Sydney Loofe. 

Trail’s attorney filed the motion seeking to rule Nebraska’s death penalty unconstitutional because “it permits judges, not juries, to make factual findings necessary to impose death sentences,” and would violate his rights under the Six and Eighth Amendments.Trail waived his aggravated circumstances hearing, which would have let the jury decide if his sentence could include the death penalty.

Johnson dismissed the motion in its entirety, writing in her order that Trail and his attorney’s “failed to meet his burden that no set of circumstances exists under which the Nebraska death penalty statutes would be invalid or that the law is unconstitutional in all it’s applications.” 

Trail’s attorney also filed a motion for a new trial in September, citing a number of issues including “prejudice” by the jury and an outburst when Trail cut his own throat in the courtroom. Johnson has not yet made a ruling on that motion. 

On Thursday, prosecutors filed a motion to supplement the court record with new evidence detailing “facts and circumstances” surrounding Trail’s throat cutting. No further action had been taken on that motion as of Friday afternoon. 

Trail’s co-defendant, Bailey Boswell, recently had her jury trial moved out of Saline County, with the judge agreeing that the publicity from Trail’s trial has made it so it will be difficult to find impartial jurors in Saline County.

Boswell is also facing charges of first-degree murder, improper disposal of human remains and conspiracy to commit murder. Her new trial date is set for March 16, 2020 in Lexington.