Judges Review Evidence in Considering Death Penalty for Aubrey Trail

Prosecutors claim he helped commit a murder with exceptional depravity. A defense lawyer countered the case is speculative, and his client was no criminal mastermind, but a self-promoting con man.

By the end of the unexpectedly speedy one-day hearing, the decision of whether to place Aubrey Trail on death row rested in the hands of a panel of judges.

In 2019 a jury in Saline County convicted Trail of killing 24-year-old Sydney Loofe on a November night in 2017. His girlfriend Bailey Boswell was also convicted in a separate trial. Evidence revealed the couple lured the girl to their apartment in Wilber after setting up a meeting through a dating app. Police theorized sexual gratification motivated the convicted killers.

Nebraska law allows sentencing hearings in first-degree murder cases. Judges weigh the circumstances that might warrant an execution while also considering factors that might justify a life sentence without parole.

The prosecutors from the State Attorney General’s office focused on what they referred to as “the depravity” of the murder, one of the nine justifications for resorting to the death penalty in Nebraska. They hoped to convince the three-judge panel the murder of Sydney Loofe was, in the word’s state statute, “especially heinous, atrocious, and cruel.”

Assistant Attorney General Doug Warner argued evidence proved the couple planned and relished anticipation of the crime.

“The state of mind at the time of the kill is the issue,” Warner told the judges, “and with the evidence of the planning of Sydney’s death, the tools gathered for that purpose, and the evidence of the desire of both Mr. Trail and Ms. Boswell to get sexual gratification from watching someone get basically mutilated is the reason this death happened.”

Much of Thursday’s hearing reviewed evidence already presented during the Trail’s 2019 jury trial.

Testimony from Dr. Michelle Elieff, the pathologist who conducted the autopsy on Loofe, reinforced the brutality of the murder. For nearly three hours, judges reviewed unsettling photos of the body parts police discovered scattered along a country road in neighboring Clay County, as Dr. Elieff opined on the methods used to dismember the body.

Warner argued the “needless mutilation” provided evidence into “the state of mind of a killer.”

Trail elected not to attend the hearing that will determine his fate.

His defense attorneys, the father-son team of Joe and Ben Murray, argued this murder did not meet the standard justifying the death penalty in Nebraska.

“This is not cold-calculated murder,” Ben Murray told the judges in his opening statement. “There is not a masterplan, and the evidence does not support the state’s theory.”

Ben Murray claimed prosecutors could not determine Trail’s state of mind at the trial. He noted prosecutors contended in a legal brief Trail, and Boswell “took perverse pleasure.”

“That’s certainly compelling, but it is pure fiction,” he said.

The lawyers theorize the Loofe’s death could have been accidental during rough sex, and in a panic, they might have resorted to dismembering the body.

Trail’s statements to police, Murray argues, were likely bragging and thus unreliable.

“They’ll talk about Aubrey joking about drinking blood,” as Murray noted was said during one of Trail’s five talkative sessions with police investigators. “But even (the police) call it falsely bragging. That’s what he does. He promises things to get something in return.”

Trail’s defense team elected to present no evidence and did not cross-examine two of the four witnesses involved in the original investigation.

Judge Johnson had scheduled a two-day hearing. The court adjourned just three hours after lunch.

On death penalty sentencing panels, the two District Court judges are selected at random and assigned to join the judge who presided over the original Trail. Chosen to review the evidence along with Judge Vickie Johnson are Lancaster County District Judge Darla Ideus and Douglas County District Judge Peter Bataillon.

Their sentencing order is still weeks away after reviewing the evidence and testimony from Trail’s 2019 jury trial and additional filings by opposing attorneys arguing whether Trail’s crime is worthy of a life sentence or death by lethal injection.

Trail’s partner, Bailey Boswell, faces her death penalty hearing, scheduled for this summer. At the Saline County Courthouse.