WILBER, Neb. — Defense attorneys saw little point in having a jury decide whether Aubrey Trail should be eligible for the death penalty after they took less than three hours to convict him of murder.
So on Thursday, Trail waived his right to have a jury decide whether the killing of Sydney Loofe, 24, involved aggravating circumstances that could qualify the case for a death sentence.
“It may have been wasted effort” to argue aggravating circumstances before that group, said Ben Murray, one of two court-appointed attorneys defending Trail.
The waiver leaves Trail’s fate to be decided by a three-judge panel to be appointed by Nebraska Supreme Court Chief Justice Michael Heavican.
One of the three judges will be Saline County District Judge Vicky Johnson, who presided over the murder trial.
The jury in the case was sequestered overnight at a motel after finding Trail guilty of first-degree murder and conspiracy to commit murder Wednesday in the slaying and dismemberment of Loofe, a Lincoln store clerk.
The jury’s focus on Thursday was to be whether aggravating circumstances — such as the heinous nature of the crime — existed that qualify the case for capital punishment.
But Trail, 52, told the court Thursday that he was waiving his right to have a jury make that decision.
He spoke only briefly to answer questions from Johnson.
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Trail opted to waive that right after seeing how quickly the group of six men and six women reached a guilty verdict in the case, Murray said.
The panel of judges will now decide on aggravating as well as mitigating factors. A hearing on those factors will likely not occur for months, he said.
Loofe’s family members were in court Thursday, as they have been throughout the trial. They appeared relieved to have gotten through this phase of the proceedings. Her father, George Loofe, said he would like to comment but would hold off for now.
“We’re a long ways from done,” he said.
Prosecutors on Thursday removed one alleged aggravator — a claim that Trail had a history of serious assaults. That leaves the allegation that the killing was exceptionally heinous, but Murray questioned the state’s case. He said prosecutors are pointing to things that happened after Loofe was already dead.
“They’re saying it was an exceptionally heinous murder, but what they’re trying to use as evidence is it was an exceptionally heinous dismemberment,” he said.
The saga began, according to prosecutors, when Loofe met someone named “Audrey” on the dating app Tinder. That someone was actually Trail’s girlfriend, Bailey Boswell. Loofe and Boswell set up a date for Nov. 14, 2017, during which they drove around Lincoln and smoked pot.
The next night, they had a second date. But Loofe, a native of Neligh, Nebraska, never came home, and prosecutors maintained that she was a victim of a conspiracy by Trail and Boswell to lure a young woman via social media for torture and death.
There was no sign of Loofe until Dec. 4, 2017. Her remains were found over two days, in 13 pieces wrapped in black plastic bags, along little-traveled gravel roads about an hour west of Wilber.
Defense attorney Joe Murray, Ben’s father, said that Trail accepted the verdict and that he expected that he would be accepting of a death sentence as well, given his serious health problems. Since his arrest, Trail has had a stroke and two heart attacks. He was brought to court in a wheelchair, although he can get around using a walker, Ben Murray said.
“His entire goal has been making clear Bailey (Boswell) had nothing to do with it,” he said. “I think he’s less concerned about himself than he is about her.”
That appeared to be the case when, early in the trial, Trail suddenly shouted out and began slashing at the right side of his neck with a small blade.
“Bailey is innocent, and I curse you all!” he yelled.
Boswell, 25, is also charged with first-degree murder, as well as improper disposal of human remains. She is scheduled to face trial in October, though her attorney has said he is seeking to move the trial out of Saline County because of the heavy publicity of the case. Trail pleaded guilty to improper disposal of human remains before his trial began.
Ben Murray said Trail cut himself with a piece of a razor blade that had been wrapped in an adhesive bandage and stuck in his collar. The Murrays declined to cast blame for allowing Trail access to the blade.
Both attorneys called the throat slashing a pivotal point in the trial and one that jurors would have had a hard time forgetting, even though the judge instructed them to disregard his action.
A 22-year-old juror named Chris, who declined to give his last name, said the cutting was the most memorable and shocking part of the trial. But he said he was able to set that aside when the jury started deliberating.
He said the group was “pretty much on the same page” in reaching a verdict.
He said he was convinced by the amount of evidence and put no stock in Trail’s changing version of events. He said Trail appeared to take the situation as a game, rather than trying to cooperate with law enforcement in solving Loofe’s death.
“I don’t think he has much credibility,” Chris said.
Other jurors left without speaking to reporters, including one man who declined to talk but said he was glad to have the trial over.
Before adjourning the trial and leaving the courtroom, Johnson thanked jurors for their service. She said she would thank each of them individually in the jury room.