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Boswell attorney challenges Nebraska death penalty, says it violates U.S. Constitution
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Boswell attorney challenges Nebraska death penalty, says it violates U.S. Constitution

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Bailey Boswell

Bailey Boswell (right) listens as her attorney, Todd Lancaster, takes notes during a hearing before Judge Julie D. Smith in Saline County Court on Monday.

WILBER — An attorney for Bailey Boswell has asked a Saline County judge to declare Nebraska's death penalty unconstitutional.

State prosecutors said last week they would seek capital punishment for Boswell, who is charged with first-degree murder in the alleged strangulation death and dismemberment of Sydney Loofe.

The state said in July it would also seek the death penalty against Aubrey Trail, who prosecutors allege lured the 24-year-old Lincoln woman to a Wilber apartment he shared with Boswell before killing her last November.

Loofe’s remains were found in rural Clay County on Dec. 4 and 5.

Boswell, who appeared briefly in court Monday, was scheduled to enter a plea to the charges of first-degree murder and unlawful disposal of human remains prosecutors have brought against her.

But because of a motion filed by her attorney, Todd Lancaster of the Nebraska Commission on Public Advocacy, Judge Julie D. Smith did not ask Boswell to enter a plea for now.

Lancaster's motion asked the court to find Nebraska’s death penalty statutes in violation of the Fifth, Sixth, Eighth and Fourteenth amendments of the U.S. Constitution, citing a 2016 U.S. Supreme Court case that overturned Florida's death penalty sentencing procedure.

The 22-page motion argues the state's capital punishment statutes are unconstitutional because they do not provide guidelines or standards for prosecutors to make a "rational" determination of the aggravating circumstances needed to seek the death penalty.

"The decision to file aggravating circumstances can be effected by the legal experience of the prosecutor, the size and resources of the particular county, any prejudice or bias of the prosecutor, the political ambition of the prosecutor, or other political circumstances," the motion says.

It also argues that while juries are able to determine whether aggravating circumstances exist, they are unable to assign any weight to those circumstances for a three-judge panel to consider, while judges are responsible for weighing mitigating factors against the aggravating circumstances when applying the death penalty.

Lancaster also argued that under Nebraska's death penalty statutes, juries have no authority to "suggest, recommend, or determine whether the Defendant should be sentenced to life" — only to find whether aggravating circumstances exist.

Because those decisions are made by the three-judge panel, the state's death penalty statutes are prejudiced against defendants who exercise their constitutional right to a jury trial, the motion says.

The motion also argues the aggravating circumstance prosecutors cite as justification for seeking the death penalty against Boswell is overly vague and not defined under Nebraska law.

The Nebraska Attorney General's Office, in filing the alleged aggravating circumstances against her Aug. 1, said Loofe's murder "manifested exceptional depravity by ordinary standards of morality and intelligence."

But Boswell's attorney said neither "exceptional depravity" nor "ordinary standards of morality and intelligence" were clearly defined in state statute, nor were they clearly interpreted in previous court challenges.

Lastly, the motion argued that fewer defendants were being sentenced to death, and that fewer condemned prisoners were being executed as part of "the evolving standards of decency that mark the progress of a maturing society."

After reading Boswell her rights and informing her of the possible penalties, Smith set a Sept. 17 hearing date for Lancaster’s motion.

Profiles of Nebraska death row prisoners' victims

Reach the writer at 402-473-7120 or cdunker@journalstar.com.

On Twitter @ChrisDunkerLJS.

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