A Saline County District judge denied a defense motion challenging Nebraska’s death penalty in the murder prosecution of Bailey Boswell, according to court records.
Judge Vicki Johnson said Boswell’s attorney failed to meet the legal burden to find the state's execution laws unconstitutional.
Boswell is accused of first-degree murder and unlawful disposal of human remains in the death of Sydney Loofe.
Loofe, 24, went missing after going on a date with Boswell on Nov. 15, 2017.
Investigators allege Boswell’s co-defendant, Aubrey Trail, strangled Loofe with an electric cord before he and Boswell dumped Loofe's remains in Clay County.
Todd Lancaster of the Nebraska Commission on Public Advocacy asked the court to find Nebraska’s death penalty statutes in violation of the Fifth, Sixth, Eighth and 14th amendments of the U.S. Constitution, citing a 2016 U.S. Supreme Court case that overturned Florida's death penalty-sentencing procedure.
The state's capital punishment statutes do not provide guidelines or standards for prosecutors to make a "rational" determination of the aggravating circumstances needed to seek the death penalty, Boswell’s attorney said.
He also argued that while Nebraska juries are able to determine whether aggravating circumstances exist, they are unable to assign any weight to those circumstances.
State prosecutors countered that the death penalty statutes in Nebraska have been found constitutional in numerous cases and in a host of circumstances.
The Nebraska Attorney General’s Office also argued that the death penalty statutes have been found constitutional when the same challenges were raised in other cases.
In a 12-page order Tuesday, Johnson said portions of Lancaster’s attack were premature, because Boswell has not yet been convicted nor has her case been deemed eligible for the death penalty.
“The Nebraska Legislature is the branch of government given the task of discerning whether the imposition of the death penalty violates evolving standards of decency,” Johnson said. “A trial court is bound by legal precedent.
“The court generally agrees with the state’s position,” the judge said.
Boswell is expected to enter a not-guilty plea and be set for trial at a hearing Dec. 17.
Trail, who has pleaded not guilty, is set for trial in June.