Death-Sentenced Prisoner Aubrey Trail Waives Appeals and Petitions Nebraska for Execution Date Despite Unavailability of Lethal Injection Drugs

On August 8, 2023, death-sen­tenced pris­on­er Aubrey Trail peti­tioned the state to set his exe­cu­tion date. Currently, there are 10 oth­ers on death row in Nebraska, but the state does not pos­sess the nec­es­sary lethal injec­tion drugs for any exe­cu­tions. Nebraska has not exe­cut­ed any­one in more than five years. The last per­son exe­cut­ed was Carey Dean Moore in 2018 via lethal injec­tion. 

Mr. Trail con­fessed to the 2017 killing of Sydney Loofe and was sen­tenced to death by a three-judge pan­el in 2021. In a let­ter to the Lincoln Star Journal Mr. Trail wrote, ​“My mes­sage to who­ev­er is lis­ten­ing is sim­ple: ​‘You gave me the death penal­ty so now use it.’… My apol­o­gy to the Loofe fam­i­ly is my not appeal­ing and let­ting my sen­tence be car­ried out with the hope that it will give them some type of closure.” 

Tim Noerrlinger, Mr. Trail’s court-appoint­ed post-con­vic­tion attor­ney, not­ed the unprece­dent­ed nature of such a request in the state’s his­to­ry, telling the Lincoln Star Journal that he was only able to find one oth­er sim­i­lar case in Idaho. But the num­ber of ​“vol­un­teers” in oth­er states has grown in recent years, in large part due to increas­ing­ly lengthy stays on death rows, which are extreme­ly iso­lat­ing and harsh. Mr. Noerrlinger explained, ​“Mr. Trail has been adamant to me, he’s not inter­est­ed in lan­guish­ing on death row for years. He would like the state to car­ry out his sen­tence so the Loofe fam­i­ly can move on.” 

In the past, Nebraska has been accused by phar­ma­ceu­ti­cal com­pa­nies of improp­er­ly obtain­ing lethal injec­tion drugs. Prior to the 2018 exe­cu­tion of Carey Dean Moore, German-based phar­ma­ceu­ti­cal com­pa­ny Fresenius Kabi filed a law­suit against the state alleg­ing that the state obtained lethal injec­tion drugs ​“in con­tra­dic­tion and con­tra­ven­tion of the dis­tri­b­u­tion con­tracts,” most like­ly from an unau­tho­rized sup­pli­er. In 2020, the Nebraska Supreme Court grant­ed an open-records law­suit filed by the Omaha World-Herald, Lincoln Journal Star, and the ACLU of Nebraska; records indi­cat­ed that Community Pharmacy Services pro­vid­ed the state with exe­cu­tion drugs, not­ed as a ​“mis­cel­la­neous expense” on invoic­es, in vio­la­tion of con­tracts with drug man­u­fac­tur­ers. At the time, a state­ment express­ing regret from Community Pharmacy Services stat­ed that they have ​“nev­er sup­plied drugs since then to the Nebraska Department of Corrections or any oth­er depart­ment of cor­rec­tions, nor will it ever again.” 

The uni­cam­er­al state leg­is­la­ture abol­ished the death penal­ty in 2015, but vot­ers reversed the deci­sion in a ref­er­en­dum the following year.