LINCOLN, NE — About three years after the case was decided, lawyers for Aubrey Trail are arguing for a mistrial in front of the Nebraska Supreme Court.

Trail’s court-appointed attorney Ben Murray told the court Trail’s in-court outburst, in which he cut his neck with a razor blade should have resulted in an immediate mistrial. The defense’s motion for a mistrial at the time was denied by Judge Vicky Johnson. Murray argued the high-profile nature of the case played a role in the judge’s decision.

"You know, a normal assault case, or something like a three day jury trial, I think this thing would have been a mistrial every time," Murray said. "But we'd all been working on this thing for two years, we'd all cleared our schedules for a month and we've got one of the most difficult defendants anyone has probably had to deal with. I'm concerned that was the bigger issue that 'We got to keep going, we have to get this thing done.'"

Murray says the jury could not have been impartial after witnessing the incident. He also says local authorities were negligent by letting Trail into the courtroom without searching him.

"He only had the razor blade in the courtroom because law enforcement hadn't followed any of their protocols," Murray said. "They hadn't searched him, they hadn't been searching him. Essentially the one person in the room that had admitted to murdering someone and dismembering them is the one person who didn't go through a metal detector."

Justices on the State Supreme Court expressed concerns about setting a precedent for defendants to attempt to get a mistrial.

"If there's a possibility of an automatic mistrial, what protection is there against a defendant perceiving things aren't going well and staging what he needs to stage to get an automatic mistrial," Nebraska Supreme Court Justice Jonathan Papik said.

The state's lawyers said Judge Johnson did her job, and did it well, with the circumstances. Senior Assistant Attorney General James Smith cited Nebraska case law in his argument.

"Case law in Nebraska says a defendant doesn't get rewarded for bad behavior," Smith said. "The defendant in this case was not rewarded, certainly should not be rewarded. There was no abuse of discretion here."

In 2019, Trail was convicted of first-degree murder in the 2017 killing of Sydney Loofe. He has since been sentenced to death.

His co-defendent Bailey Boswell, who had her own trial after Trail’s, was sentenced to life in prison.