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.
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"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
Maynard Helgeland, 47, of Omaha, Happy Cab driver. He was shot three times in the head on Aug. 26, 1979, by Carey Dean Moore. His body was found on the front seat of his cab on a street near downtown Omaha adjacent to a vacant lot. He had picked up Moore on a Sunday night. Helgeland was known as a very dependable driver and a nice, positive person. He and his son, Ken, had operated the cab since July 2. Both his legs had been amputated two years prior at the Veterans Hospital.
Reuel Van Ness
Reuel Van Ness, 47, of Omaha, Safeway Cab driver. He was shot four times by Carey Dean Moore in 1979 when he reached back for Moore's gun as Moore tried to rob him. His body was found sprawled face down in a desolate park road intersection at Standing Bear Lake in northwest Omaha. Van Ness had worked for an Omaha construction company and part time as a cab driver for 17 or 18 years. He was a Korean War veteran and father of 10 children.
Brandon Teena, 21, of Lincoln. The transgender man was killed in 1993 near Humboldt by John Lotter and Marvin Nissen. They killed Teena to silence him after he told police the two men had raped him. He was shot twice in the head and stabbed.
Philip Devine, 22, of Fairfield, Iowa, died in 1993. John Lotter was convicted of shooting Devine, who had a prosthetic leg, twice in the head because he witnessed the killing of Brandon Teena at a farmhouse near Humboldt.
Lisa Lambert, 24, of rural Humboldt, a nurse's aide. She died in 1993. John Lotter was convicted of killing Lambert, a single mother of a 9-month-old boy, because she witnessed the murder of Brandon Teena, a transgender man who was staying in the one-story farmhouse Lambert rented. Lambert was shot three times, twice in the head at close range.
Adam Billie-Gomez, 3, of Scottsbluff. Adam, the son of Patricia Gomez, was killed by Raymond Mata and dismembered in December 1999. Parts of his body were found in a freezer and a dog bowl, and bone fragments belonging to him were found in Mata's dog's stomach.
Latara and Tramar Chandler
Latara Chandler, 13, and Tramar Chandler, 7, of Omaha. In 2001, police found Latara's body, nude from the waist down, in a bedroom at the apartment of her mother, who had been found in another location severely beaten by Arthur L. Gales. Tramar's body was found face up in the bathtub, with his legs outside the tub. Autopsies revealed that Latara died as a result of manual strangulation and that Tramar died as a result of drowning and manual strangulation. Latara had been sexually assaulted.
Lisa Bryant, 29, of Norfolk. Bryant was the mother of a 9-year-old son and a stepdaughter and had been married just weeks when she was killed at her U.S. Bank branch in Norfolk on Sept. 26, 2002, by Erick Vela during a botched robbery attempt. Bryant, who was a personal banker who had worked at the bank six years, was a graduate of Wayne State College.
Lola Elwood, 43, of Norfolk, assistant branch manager at U.S. Bank for 14 years. Elwood was shot and killed by Jorge Galindo during the botched bank robbery on Sept. 26, 2002. She was married and the mother of two children. She was said to have loved crafts, sewing, music and taking care of her family.
Samuel Sun, 50, of Norfolk, a teller at U.S. Bank for eight years. The father of two sons, he was shot and killed at the Norfolk bank by Jose Sandoval on Sept. 26, 2002. Sun had an associate's degree in business management from Northeast Community College. He was said to have enjoyed opera and liked to watch the Green Bay Packers with his boys.
Jo Mausbach, 42, of Humphrey, a bank teller at U.S. Bank for 17 years. She was shot and killed at the Norfolk bank by Jose Sandoval on Sept. 26, 2002. She was married and the mother of a daughter and a son. She attended Wayne State College. Mausbach was a caring person who lived for her children and family, her husband said.
Evonne Tuttle, 37, of Stanton. A bank customer, she was shot and killed by Jose Sandoval in Norfolk during a botched robbery attempt Sept. 26, 2002. She was the mother of three daughters. Tuttle grew up in Ewing and had pursued degrees in business and computer science at Wayne State College and Northeast Community College. She was an assistant editor at the Stanton Register and was said to have a knack for handling customers.
Heather Guerrero, 15, of Gering. Heather was a newspaper carrier who was kidnapped, raped and shot in the head by Jeffrey Hessler in February 2003. Her body was found in an abandoned farmhouse. She was active in her school, playing volleyball, being a student manager for the basketball team, and in a group that did anti-drug skits for children.
Amber Harris, 12, of Omaha. Amber was kidnapped after she got off her school bus in November 2005 and headed home. Her remains weren't found in an Omaha park for six months. Roy L. Ellis kidnapped and killed the seventh-grader by hitting her in the head with a blunt object.
Edward Hall and Timothy Donohue
Edward Hall, 60, and Timothy Donohue, 48, both of Grand Island. The two men were killed by Marco E. Torres in 2007. Torres bound Hall, who owned the house in which Torres was living, with an electrical cord, gagged him with a bathrobe belt and shot him three times. He then shot and killed Donohue, who lived in an upstairs room in Hall's home. The men were killed to conceal a robbery.
Curtis Bradford, 22, of Omaha. Bradford was killed in August 2013 by Nikko Jenkins, who he met when both were in prison. He had planned to study business and entrepreneurship at a technical institute, his mother said.
Jorge Cajiga Ruiz and Juan Uribe-Pena
Jorge Cajiga Ruiz, 29, and Juan Uribe-Pena, 26, both of Omaha. They were killed in August 2013 by Nikko Jenkins, both shot in the head while sitting in a pickup truck after being lured to a park under the pretense of having sex with two women.
Andrea Kruger, 33, of Omaha. Kruger, a mother of three children, was found shot to death and left lying in the street in west Omaha. Nikko Jenkins was convicted in her August 2013 death as the result of a random attack when she was on her way home from work. She left behind a husband and three children, ages 2 to 13.
Terry Berry Jr.
Terry Berry Jr., 22, of Scottsbluff and Steinauer. Berry was strangled to death in April 2017 by convicted killer Patrick Schroeder in a cell he shared with the inmate at Tecumseh State Correctional Institution. Berry was serving up to three years for forgery and assault. His obituary notice said he enjoyed helping others, especially his grandfather.