Saline County Judge Vicky Johnson denied a new trial for Aubrey Trail Dec. 30.
Trail, found guilty in July of killing Lincoln woman Sydney Loofe, requested a new trial in September.
His defense team cited “irregularity in proceedings” and “misconduct of the jury” in their filing shortly after the trial.
In a court-ordered motion, Johnson referenced state law which says the “defendant may not cause his own mistrial through his own behavior” as partial reasoning for her decision.
Her statement was in reference to Trail slashing his throat in front of the jury in between testimony from witnesses June 24.
According to the order, each juror spoke with Johnson and said despite such an action, they were able to remain neutral in reaching a decision.
In court documents, Trail’s defense team also cited six other reasons for their request for a new trial, with included denial of Trail’s motion to exclude evidence of Home Depot purchases because the cause of death was asphyxiation, not wounds, allowing the publication of gruesome photographs to the jury and allowing Loofe’s mother to remain in the courtroom after sequestration.
In her ruling, Johnson wrote that Trail had given no evidence in support of his claim of the court’s prejudice toward him.
“The evidence adduced by the State does not indicate that the Defendant was incompetent. His action was not caused by mental imbalance. It was, in fact, a calculating gesture resulting in superficial cuts,” Johnson wrote.
The ruling also stated a claim by Trail that the jury’s deliberation on a guilty verdict lasted only two hours and that the jury only had access to evidence for the last 30 minutes of that time.
“There is no evidence in support of this claim,” Johnson wrote. “Further, all exhibits were published to the jury during the trial. It must also be noted that the Defendant admitted to killing the victim. The only issue for the jury to decide was whether it was accidental or premeditated. Whether the jury had the exhibits for 30 minutes or two hours is irrelevant; the jury delivered its verdict. It is not proper to inquire further into their deliberations.”
Trail now faces the death penalty. His attorneys filed a motion to declare the death penalty unconstitutional, but it was denied. On Jan. 2, a three-judge panel was appointed to hear his case. The judges are Julie Smith of Tecumseh and Michael Smith of Plattsmouth, along with Johnson, who oversaw the trial.
The following day, however, Trail moved that Julie Smith recuse herself. Smith had previously provided counsel to the Nebraska Department of Corrections and had a hand in drafting state death penalty protocols.
According to court documents, “the state of Nebraska is seeking to execute Aubrey Trail using the very protocol drafted by Judge Smith in her prior position.”
No date has been set for Trail’s sentence hearing.
In another matter, a charge of conspiracy to commit murder was dropped Jan. 3 against Trail’s co-defendant Bailey Boswell, citing a lack of specifics brought forward by the prosecution. Boswell will go to trial in March in Lexington on counts of first-degree murder and improper disposal of human remains.
The state has until Jan. 10 to refile the charge.