Aubrey Trail's attorney argued Thursday that he should get a new trial because his in-court suicide attempt in front of the jury should have resulted in a mistrial.
But several Nebraska Supreme Court justices expressed concerns that other defendants could follow his lead to stage something shocking to get a mistrial if they felt the trial wasn't going their way.
Here, defense attorney Ben Murray said the case over Sydney Loofe's Nov. 15, 2017, killing and gruesome dismemberment already had been a very public, unusual one drawing national attention.
Trail, who was sentenced to death for Loofe's murder, was the self-professed leader, along with his girlfriend, Bailey Boswell, of a counterculture group of young women involved in crimes and sex based in a house Trail rented in Wilber.
"We also had an interesting twist where the luring of the victim was done over social media, which was kind of a new issue that we were dealing with," Murray told the Nebraska Supreme Court.
At the start of trial in June 2019, jurors were told there would be talk of torture, of witchcraft, of vampires and unusual sex practices, and even of the possibility that they had drank the victim's blood, Murray said.
Then, on the first day of the second week, Trail stood up, yelled "Bailey is innocent, and I curse you all," produced a razor blade he'd hidden in his mouth and "sliced his throat."
"The security video showed jurors running and covering their faces. So there was no question that they saw it," Murray said.
He said he was 6 inches from the guy, and there was a lot of blood. Trail required nearly 100 stitches, he said.
While a defendant can't usually cause his or her own mistrial under Nebraska case law, this was different, Murray argued. He said law enforcement in Saline County, where Trail was being held, had negligently played some part in it by giving him a razor blade three days earlier without taking it back and, "through laziness or whatever," by failing to follow their own screening protocols.
"Essentially, the one person in the room who admitted to murdering someone and dismembering them is the one person that didn't go through a metal detector," he said.
Murray conceded, upon questioning, that law enforcement hadn't encouraged Trail to do it.
But he relied on a 7th Circuit decision in 2007 that says certain courtroom situations are "so beyond the pale, so prejudicial" that no amount of questioning of jurors or instructions to them can remedy the defect.
"The problem is it was just so beyond anything," the attorney said. "We're in a situation where we're talking about witchcraft, we're talking about torture, we're talking about this horrible murder, and they see this man make a suicide attempt. And on top of that he is cursing them."
Saline County District Judge Vicky Johnson took jurors, one at a time, into chambers with one defense attorney and one prosecutor and asked each juror if they could set what they'd seen aside.
Then, the trial moved on.
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On the other side, James D. Smith, Senior Assistant Nebraska Attorney General, kept his comments brief, using much of his time praising Johnson.
"Frankly, the district court did one of the most impressive jobs I've ever seen of managing the trial and outburst (and) should be highly complimented for the way she handled this," he said.
Smith said Johnson quickly adjourned, allowing Trail to get medical attention, sent the jurors to lunch, then cautioned them when they returned about not considering his outburst.
On top of that, he said, she did individual questioning of the jurors and used her discretion to deny the mistrial.
The jury went on to find Trail guilty of first-degree murder of 24-year-old Loofe. A three-judge panel later sent him to death row.
Smith said what the district court did after Trail's outburst reflected a very experienced trial judge showing good judgment in managing a trial where something unforeseen happens, "namely the defendant trying to cause his own mistrial."
"The defendant doesn't get rewarded for bad behavior," Smith said. "And the defendant in this case was not rewarded, certainly should not be rewarded. There was no abuse of discretion here."
Justice Jeffrey Funke asked what role Saline County's alleged negligence has on this issue.
"None," Smith answered quickly. "When you try to blame others for your own misconduct, that's a nonstarter. And that's what the defendant's trying to do."
"Did the defendant engage in bad behavior? Yes. Was it willful? Yes. Can the defendant cause his own mistrial? No. Did the judge under the circumstances take proper measures to manage the trial? Yes," he said.Â
The justices are expected to rule later.
Nebraska's 11 death row inmates
Jose Sandoval
Jose Sandoval, Jan. 31, 2005, Madison County. Sandoval was convicted with Jorge Galindo and Erick Vela of shooting and killing Lisa Bryant, 29, Lola Elwood, 43, Samuel Sun, 50, all Norfolk, Jo Mausbach, 42, Humphrey, and Evonne Tuttle, 37, of Stanton, in a botched attempted bank robbery.
Courtesy photo
Nikko Jenkins
* Nikko Jenkins, May 30, 2017, Douglas County. Eleven days after his release from prison, where he had been for 10 years for two carjackings, Jenkins shot and killed Juan Uribe-Pena and Jorge Cajiga-Ruizon on Aug. 11, 2013. Eight days later, Jenkins killed Curtis Bradford, a one-time prison acquaintance. Then, on Aug. 21, he pulled Andrea Kruger from her SUV as she drove home from work and shot her four times before speeding off in her vehicle.
NATI HARNIK, Associated Press file photo
John Lotter
* John L. Lotter, Feb. 21, 1996, Richardson County. Lotter and Marvin Nissen were convicted of killing Teena Brandon, 21, of Lincoln, a transgender male. They killed Brandon in 1993 to silence him after he told police they had raped him. They also killed Lisa Lambert, 24, and Phillip DeVine, 22, who lived in the same house as Brandon and witnessed the killing. Lotter has maintained his innocence.
Courtesy photo
Raymond Mata
* Raymond Mata, June 1, 2000, Scotts Bluff. Mata was convicted of killing and dismembering 3-year-old Adam Gomez, his former girlfriend’s son, in 1999. Prosecutors said Mata fed parts of the boy's body to a dog, and kept some of his remains in the home to intimidate the boy’s mother.
Courtesy photo
Jorge Galindo
* Jorge Galindo, Nov. 10, 2004, Madison County. Convicted with Jose Sandoval and Erick F. Vela for shooting and killing Lisa Bryant, 29, Lola Elwood, 43, Samuel Sun, 50, all Norfolk, Jo Mausbach, 42, Humphrey, and Evonne Tuttle, 37, of Stanton, in a botched attempted bank robbery.
Courtesy photo
Erick Vela
* Erick F. Vela, 34, Jan. 12, 2007, Madison County. Convicted with Jose Sandoval and Jorge Galindo for shooting and killing Lisa Bryant, 29, Lola Elwood, 43, Samuel Sun, 50, all Norfolk, Jo Mausbach, 42, Humphrey, and Evonne Tuttle, 37, of Stanton, in a botched attempted bank robbery.
Courtesy photo
Jeffrey Hessler
* Jeffrey Hessler, May 18, 2005, Scotts Bluff County. In 2003, Hessler kidnapped, raped and murdered 15-year-old newspaper carrier Heather Guerrero.
Courtesy photo
Roy Ellis
* Roy L. Ellis, Feb. 6, 2009, Douglas County. Ellis abducted, sexually assaulted and killed 12-year-old Amber Harris, who died of at least two blows to the head. Ellis has said he used a hammer, and he may also have strangled her.
Courtesy photo
Marco Torres
* Marco E. Torres, Jan. 29, 2010, Hall County. In 2007, he tortured and killed Edward Hall, 60, binding him with an electrical cord, gagging him with a bathrobe belt and shooting him three times. He then shot and killed Timothy Donohue, 48, who lived in a room upstairs in Hall's home. The men were killed to conceal a robbery.
Courtesy photo
Anthony Garcia
Anthony Garcia, a former doctor convicted of killing four people connected to Creighton Medical Center, was sentenced to death Sept. 14, 2017.
KENT SIEVERS, Omaha World-Herald
Aubrey Trail
Aubrey Trail (left) was sentenced to death June 9, 2021, for killing Sydney Loofe and dismembering her body.
FRANCIS GARDLER, JOURNAL STAR file photo
Photos: Aubrey Trail in court
Aubrey Trail, 6.9
Aubrey Trail is wheeled out of a Saline County courtroom on Wednesday after being sentenced to death in the killing of Sydney Loofe.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Aubrey Trail is wheeled out of the Saline County Courthouse courtroom where he was sentenced to death on June 9 in the murder of Sydney Loofe .Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
The family of Sydney Loofe, (from left) brother Levi, sister MacKenzie, mother Susie, and father George, watches the sentencing of Aubrey Trail on Wednesday, at the Saline County Courthouse.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Aubrey Trail is wheeled out of the Saline County courtroom on Wednesday after being sentenced to death in the murder of Sydney Loofe.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Judge Vicky Johnson speaks at the sentencing of Aubrey Trail on June 9 at the Saline County Courthouse. Trail was sentenced to death.
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Judges Susan Strong and Michael Smith, who served with Judge Vicky Johnson on a three-judge panel that determined the penalty for Aubrey Trail, listen during the hearing where he learned his fate on June 9 at the Saline County Courthouse.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Judge Vicky Johnson speaks at the sentencing of Aubrey Trail on Wednesday at the Saline County Courthouse.
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Susie Loofe, mother of Sydney Loofe, listens during the sentencing of Aubrey Trail on Wednesday at the Saline County Courthouse.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Aubrey Trail is wheeled into the the courtroom on Wednesday at the Saline County Courthouse.Â
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Aubrey Trail (from left) and his defense attorneys Joe Murray and Ben Murray listen during the sentencing hearing on June 9 at the Saline County Courthouse.
JUSTIN WAN, Journal Star
Aubrey Trail, 6.9
Aubrey Trail (left) is wheeled into the the courtroom in front of the family members of Sydney Loofe on Wednesday at the Saline County Courthouse.Â
JUSTIN WAN, Journal Star
Aubrey Trail Trial, 7.10
Aubrey Trail is wheeled out of court after being found guilty of first-degree murder on July 10. Trail, who showed no emotion as the verdicts were read, was also found guilty of a second count of criminal conspiracy to commit murder.
FRANCIS GARDLER, JOURNAL STAR file photo
Aubrey Trail Trial, 7.10
Sydney Loofe's mother, Susie Loofe, sits between her daughter, MacKenzie Loofe, and Loofe's father, George, as the clerk of the court reads the guilty verdict against Aubrey Trail in Saline County District Court last year. The jury of six men and six women deliberated for less than three hours before returning the verdict on a first-degree murder charge.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 7.10
Deputies stand near Aubrey Trail on Wednesday in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 7.10
Aubrey Trail (left) looks in the direction of the jury during judge's instructions on July 10 in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR file photo
Aubrey Trail Trial, 7.10
Defense attorney Joe Murray (right) looks toward the jury as Saline County District Court Judge Vicky Johnson delivers instructions on July 10.
FRANCIS GARDLER, JOURNAL STAR file photo
Aubrey Trail Trial, 7.10
Defendant Aubrey Trail listens as Saline County District Court Judge Vicky Johnson finishes her instructions to the jury on Wednesday.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 7.10
Saline County District Court Judge Vicky Johnson reads her instructions to the jury before their deliberations on Wednesday.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 7.10
Defendant Aubrey Trail looks in the direction of the jury during the judge's instructions to the jury on Wednesday in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail trial, 7.9.19
Aubrey Trail testifies in his murder trial in Saline County District Court on July 9
CHRIS MACHIAN, Omaha World-Herald file photo
Aubrey Trail trial, 7.9.19
FBI Agent Mike Maseth testifies about letters from Aubrey Trail during his trial in Saline County District Court on Tuesday.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail trial, 7.9.19
Prosecutors showed jurors a letter from Aubrey Trail, written in code, in his murder trial in Saline County District Court.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail trial, 7.9.19
Prosecutors shared a letter written by Aubrey Trail during his murder trial in Saline County District Court.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail trial, 7.9.19
Prosecutors showed jurors a letter from Aubrey Trail, written in code, in his murder trial in Saline County District Court.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail trial, 7.9.19
Deputies keep an eye on Aubrey Trail, who returned to court for the first time on Tuesday following an apparent suicide attempt in the courtroom last month.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail trial, 7.9.19
Aubrey Trail points to photos his attorney Joe Murray is holding while testifying in his murder trial in Saline County District Court in July.
CHRIS MACHIAN, Omaha World-Herald file photo
Aubrey Trail trial, 7.9.19
Aubrey Trail stretches during his trial at the Saline County Courthouse on Tuesday.
CHRIS MACHIAN, Omaha World-Herald
Aubrey Trail Trial, 6.28
Assistant Nebraska Attorney General Mike Guinan (right) hands material written by Aubrey Trail to FBI special agent Michael Maseth on Friday during Trail's trial in Saline County District Court.Â
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
Defense attorney Joe Murray objects to FBI special agent Michael Maseth being asked "whose handwriting is this" on Friday during Aubrey Trail's trial.
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
The defense and prosecution, including Assistant Attorney General Mike Guinan (center right), are shown June 28 at their respective tables during Aubrey Trail's trial at the Saline County District Court in Wilber.Â
EMILY HANEY, Journal Star file photo
Aubrey Trail Trial, 6.28
Assistant Nebraska Attorney General Mike Guinan (left) questions FBI special agent Michael Maseth on Friday during Aubrey Trail's trial in Saline County District Court in Wilber.
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
Wilber, NEB. - 6/28/2019 - Saline County District Court Judge Vicky Johnson addresses the attorneys after defense attorney Joe Murray makes an objection on Friday, June 28, 2019, during the Aubrey Trail Trial at Saline County District Court. EMILY HANEY, Journal Star
EMILY HANEY Journal Star
Aubrey Trail Trial, 6.28
A four-hour police interview with Aubrey Trail is played on Friday in Saline County District Court.Â
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
Prosecutors showed a four-hour police interview with Aubrey Trail during his trial on Friday in Saline County District Court.Â
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
Prosecutors showed a four-hour police interview with Aubrey Trail during his trial on Friday in Saline County District Court.Â
EMILY HANEY, Journal Star
Aubrey Trail Trial, 6.28
Prosecutor Mike Guinan holds Aubrey Trail's writing samples on Friday during the trial in Saline County District Court.Â
EMILY HANEY, Journal Star
Aubrey Trail trial, 6.24.2019
Defense attorney Joe Murray listens to instructions from Saline County District Court Judge Vicky Johnson regarding an outburst from defendant Aubrey Trail on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail trial, 6.24.2019
Saline County District Judge Vicky Johnson addresses the jury regarding an outburst from defendant Aubrey Trail earlier on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail
Aubrey Trail is taken from the Saline County courthouse after he shouted and appeared to cut his neck with an object during testimony on Monday in his murder trial.
PAUL HAMMEL, Omaha World-Herald
Aubrey Trail Trial, 6.18
Aubrey Trail (left) and defense attorney Ben Murray listen as Assistant Attorney General Sandra Allen delivers her opening statement to the jury on Tuesday.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Aubrey Trail (left) listens and defense attorney Ben Murray takes notes as Nebraska Assistant Attorney General Sandra Allen delivers her opening statement to the jury Tuesday in Trail's murder trial in Wilber.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Aubrey Trail sits to the left of attorneys for the defense and prosecution during opening statements in his murder trial in Saline County District Court on Tuesday.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Defense attorney Joe Murray delivers his opening statement to the jury as Aubrey Trail's murder trial begins Tuesday in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Nebraska Assistant Attorney General Sandra Allen talks to the jury during her opening statement Tuesday in Aubrey Trail's murder trial in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Aubrey Trail listens as Assistant Attorney General Sandra Allen delivers her opening statement to the jury last week in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR file photo
Aubrey Trail Trial, 6.18
Defense attorney Joe Murray delivers his opening statement to the jury as the Aubrey Trail trial begins Tuesday in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Assistant Attorney General Sandra Allen delivers her opening statement to the jury as Aubrey Trail's trial begins Tuesday in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Defense attorney Joe Murray (left) sits behind the prosecution's table to watch and listen as Assistant Attorney General Sandra Allen delivers her opening statement to the jury in Aubrey Trail's trial in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Aubrey Trail enters the courtroom on Tuesday, the first day of his trial in Saline County District Court.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail Trial, 6.18
Saline County District Court Judge Vicky Johnson instructs the jury on Tuesday.
FRANCIS GARDLER, JOURNAL STAR
Aubrey Trail plea hearing
Aubrey Trail appears in Saline County District Court for a plea hearing on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail plea hearing
Aubrey Trail (center) is wheeled into Saline County District Court in Wilber for a plea hearing Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail plea hearing
Defense attorney Joe Murray listens during a plea hearing for Aubrey Trail in Saline County District Court on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail plea hearing
Defense attorney Joe Murray speaks to the judge as client Aubrey Trail (left) listens during a plea hearing in Saline County District Court on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail plea hearing
Aubrey Trail appears in Saline County District Court for a plea hearing on Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail plea hearing
Saline County District Court Judge Vicky Johnson guides Aubrey Trail through a plea hearing Monday.
GWYNETH ROBERTS, Journal Star
Aubrey Trail
Aubrey Trail appears in Saline County District Court for a plea hearing on Monday.
GWYNETH ROBERTS, Journal Star
Reach the writer at 402-473-7237 or lpilger@journalstar.com .
On Twitter @LJSpilger
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