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Watch now: Aubrey Trail's attorney argues in-court suicide attempt should have been automatic mistrial

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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.

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."

To him, it was simple.

"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. 

The justices are expected to rule later.

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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