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.