Aubrey Trail’s new attorney asks to hire mitigation expert
Aubrey Trail is wheeled out of a Saline County courtroom in 2021 after being sentenced to death in the killing of Sydney Loofe.
Facing a Dec. 19 deadline to file a post-conviction challenge to his death-row sentence for the killing and dismemberment of Sydney Loofe, Aubrey Trail’s new attorney asked a judge Thursday for permission to hire a mitigation expert to help her flesh out potential claims.
attorney Megan Kielty said the request is not necessarily an unusual one and in line with American Bar Association guidelines and established Supreme Court law, particularly in capital cases.
Trail
“This is not a run-of-the-mill post-conviction case,” she said.
In 2021, Trail was sentenced to death for Loofe’s murder.
The Lincoln store clerk’s disappearance the night of Nov. 15, 2017, led to a multistate manhunt for Trail and his girlfriend, Bailey Boswell, who in Facebook videos claimed to know nothing about it. Their cellphone records, though, led police, deputies and the FBI to fields and ditches in Clay County, where they made the grisly discovery of Loofe’s remains left scattered in trash bags.
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At trial in June 2019, jurors found Trail guilty. Two years later, he was sentenced to death and Boswell later got a life sentence.
In court Thursday, Kielty said she has identified some potential claims already but needs a mitigation expert in order to fully investigate them and collect any evidence in anticipation of a potential evidentiary hearing.
“It is my role to ensure that the state court record is fully developed, and I simply am not able to meet that requirement unless I have the assistance of someone who is a specialist in this matter,” she told the judge.
Assistant attorney General Mike Guinan objected, saying that at the trial and sentencing phase Trail had a mitigation expert who was paid tens of thousands of dollars.
“We’ve been down that road already,” he said. “Right now, we are at that point in this proceeding where we’re trying to make a determination if Mr. Trail even gets a hearing.”
Guinan said that involves a review of the record as it stands.
And Trail’s attorney would have to make a showing that there had been a denial or violation of the federal or state constitution.
“First of all, Ms. Kielty has not even filed a post-conviction motion, so we don’t even have in front of us something to review,” he said, suggesting she was subcontracting out the work she was appointed to do.
Saline County District Judge David Bargen asked Kielty if they had the cart before the horse.
“It’s almost like asking for discovery before a case has been filed,” he said.
Kielty said it’s not enough to review what Trail’s previous attorneys did, she also has to follow up on anything they may not have done. If Trail had the financial means, he wouldn’t even have to ask for permission.
Against her advice, Trail, who appeared by video from the Tecumseh State Correctional Institution, asked to make a statement.
“I know I have a reputation for saying crazy stuff, but this is my life. I’m not trying to grandstand. I actually have something to say,” he said.
Trail said he’s made several filings this year to try to get the state to carry out his sentence.
In August, a Lancaster County judge shot down the latest — a petition where he sought to force the state to set an execution date — calling it frivolous because Trail “does not have the right to dictate when the state will execute him.”
On Thursday, Trail said: “Since they’ve chosen not to carry out the sentence they gave me, I feel that I should be given every opportunity that’s available to show any error in the court proceedings that sentenced me to death.”
Bargen asked the attorneys to brief the matter before he decides.
Trail, 57, previously had said he didn’t wish to file anything that would stay his execution, and he told the Journal Star on Thursday he sent a letter to Gov. Jim Pillen saying that if Pillen showed effort he was going to try to fix the death penalty next legislative session, then Trail would wait.
“Although I’m guilty as hell, I will sit here till I die of old age manipulating the system and denying the family justice,” he said, blaming the state for not finding a way.
In 2015, state lawmakers abolished capital punishment, but voters reversed the decision through the referendum process in 2016. In 2018, the state executed Carey Dean Moore by lethal injection but hasn’t since been able to secure the drugs necessary to carry out another execution.
The Nebraska Supreme Court on Thursday affirmed Aubrey Trail’s conviction and sentence for the murder of 23-year-old Sydney Loofe.
The inmates on Nebraska’s death row and their crimes
Raymond Mata Jr.
RAYMOND MATA JR.
Crime: Killing and dismembering 3-year-old Adam Gomez of Scottsbluff in 1999 and feeding some of his remains to a dog.
Jose Sandoval
JOSE SANDOVAL
Crime: his role in the slayings of five people during a 2002 bank robbery attempt in Norfolk; he shot and killed bank employees Jo Mausbach and Samuel Sun and customer Evonne Tuttle.
Jorge Galindo
JORGE GALINDO
Crime: The 2002 Norfolk bank robbery; he shot and killed Lola Elwood, a bank employee.
Erick F. Vela
ERICK F. VELA
Crime: 2002 Norfolk bank robbery; he shot and killed Lisa Bryant, a bank employee.
Jeffrey Hessler
JEFFREY HESSLER
Crime: kidnapping, raping and murdering Heather Guerrero, a 15-year-old Gering newspaper carrier, in 2003.
John L. Lotter
JOHN L. LOTTER
Crime: 1993 murders of Brandon Teena, 21, Lisa Lambert, 24, and Phillip DeVine, 22, in a farmhouse near Humboldt; the story of the transgender Brandon was fictionalized in the film “Boys Don’t Cry.”
Roy L. Ellis
ROY L. ELLIS
Crime: the 2005 abduction and bludgeoning death of 12-year-old Amber Harris of Omaha.
Marco E. Torres Jr.
MARCO E. TORRES JR.
Crime: the 2007 execution-style shooting deaths of two Grand Island men, Timothy Donohue and Edward Hall.
Anthony Garcia
ANTHONY GARCIA
Crime: 2008 murders of 11-year-old Thomas Hunter and 57-year-old Shirlee Sherman, and 2013 murders of 65-year-old Dr. Roger Brumback and 65-year-old Mary Brumback.
Nikko Jenkins
NIKKO JENKINS
Crime: four murders during a 2013 killing spree in Omaha.
Aubrey Trail
Aubrey Trail
Crime: the 2017 abduction and slaying of Lincoln store clerk Sydney Loofe.
Reach the writer at 402-473-7237 or lpilger@journalstar.com.
On Twitter @LJSpilger
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