WILBER — Aubrey Trail’s trial took another unexpected twist Thursday when he waived his right for a jury to consider the evidence the state says makes his 2017 killing of 24-year-old Sydney Loofe worthy of a death sentence.
“I was surprised. But it gets us off the hook,” said one juror, who identified himself as Chris, after Saline County District Judge Vicky Johnson excused him and the 11 others who an evening earlier found Trail guilty of first-degree murder and conspiracy to commit murder.
He declined to say if he thought Trail deserved the death penalty for it.
The news put a smile on George Loofe’s face after stoically sitting in the front row for more than three weeks hearing gruesome details about how Trail strangled his daughter, dismembered her body and left her remains spread out in garbage bags in ditches of rural Clay County.
Now, instead of a jury, a three-judge panel, which includes Johnson, will consider the state’s evidence to support its allegation that Loofe's murder "manifested exceptional depravity by ordinary standards of morality and intelligence.”
The Nebraska Attorney General’s Office on Thursday dropped a second allegation that Trail had a substantial prior history of serious assaultive or terrorizing criminal activity.
Outside the Saline County Courthouse, Joe Murray, one of Trail’s court-appointed attorneys, said obviously the verdict was disappointing. They didn’t feel the evidence supported the finding of premeditation.
“While we’re not criticizing the jury’s effort yesterday,” he said, "we weren’t going to give them another chance to make another decision today."
Co-counsel Ben Murray said after nearly four weeks of testimony and 900 exhibits, the jury wasn’t out even three hours.
“We thought it may have been wasted effort to try to argue it to them today,” he said.
Plus, Joe Murray said, with a three-judge panel there will be written findings of fact, unlike with a jury verdict, and they’ll know what the decision is based on.
Both said Trail was accepting of Wednesday night's guilty verdicts. Asked if he also would be accepting of a death sentence, Ben Murray said: “Given his health problems, I don’t know what kind of a factor that’s going to be anyway.”
Both expressed big concerns about the jury witnessing Trail slash at his throat with part of a razor blade wrapped in a Band-Aid two weeks ago, something that Ben Murray said was so shocking they couldn’t recover from it.
They asked for a mistrial, but the judge denied it based on case law that says a defendant can’t cause his own mistrial.
But Joe Murray said there are certain circumstances, like this, that nobody has experienced before.
"How are you going to make the jurors witnesses to something like that and then judge this case?” he asked.
It's likely to be an issue on appeal.
In the parking lot, Chris, the juror, said the cutting was one of things he’ll remember from the trial for years.
“I was shocked. I was looking at it and I was like, ‘Is this really happening in front of me? I don’t know, it’s crazy what he did,’” he said.
It’s hard, the juror said, but when they tell you to disregard it, you disregard it.
Asked if he thought Trail helped himself by taking the stand earlier in the week, Chris said not at all. Trail admitted he kept changing his story. He didn’t have much credibility.
“No, I don’t think it was an accident,” the juror said, referring to Trail's claim that Loofe's death was accidental. "I don’t think so."
The aggravation hearing will be set later, after Nebraska Supreme Court Chief Justice Mike Heavican appoints two other judges to hear the case. The hearing isn’t likely to happen until winter.