LINCOLN – Despite a mysterious diary that seems to point to other culprits, the Nebraska Supreme Court has refused to reopen the case of David Phelps, convicted of kidnapping in the 1987 disappearance of 9-year-old Jill Cutshall of Norfolk.
The diary surfaced in March 2012 as part of a Valley County murder trial involving the 1989 disappearance of Cathy Beard, a 31-year-old Ord woman.
After John Oldson was arrested for the crime in February 2012, the photocopied pages were mailed anonymously to his family in Missouri.
The pages tell a horrific story of the sexual torture and deaths of four girls and women in a cave-like structure on a Garfield County ranch. One of the described victims was called “Kathy,” another “Jill Dee” – matching Jill Cutshall's first and middle names.
Prosecutors in the Oldson trial dismissed the diary as a fake, manufactured by a former hired hand at the Garfield County ranch to get back at his female boss, with whom he has had a long-running feud.
Jim Mowbray, the state attorney who defended Oldson, said he remains haunted by the diary, because its details seem corroborated by historical – and not readily available – facts about the disappearances of four women and girls in Nebraska and South Dakota during that time frame.
Oldson, 46, was convicted of second-degree murder in the death of Beard, whose body was found in a field outside Ord three years after her disappearance.
In August, Phelps filed an appeal based on the diary, which he said exonerates him.
“Said diary gives disturbingly graphic detail of the abduction, rape and murder of four women . . . one of those victims is Jillian Cutshall . . . the victim for which I stand wrongfully convicted,” he wrote.
However, the Supreme Court said too much time had passed to reopen the Phelps case based on newly discovered evidence. Nebraska law sets a three-year time limit to request a new trial based on newly discovered evidence.
The high court said Phelps hadn't submitted enough evidence to show that his continued incarceration violates his constitutional rights.
“Phelps has not alleged any personal knowledge of the actual content of the diary or explained in any detail how its contents would necessarily exonerate him,” the high court said in a 6-0 ruling written by Judge Kenneth Stephan. “His allegations are speculative and conclusory.”
When compared with other evidence in the case, the allegations about the diary “fall far short” of the threshold needed to reopen the case, Stephan wrote.
Mowbray said Nebraska law essentially requires inmates in Phelps’ position to prove that they are innocent before they can be granted a new trial. “It’s impossible,” he said.
Jill Cutshall's body was never found. A hunter found her clothing in Stanton County several months after her disappearance.
Phelps confessed to participating in Cutshall's kidnapping and molestation after a private detective took him to the area where her clothing was found, fired a gun in the air and gave Phelps a shovel, telling Phelps to show him where the girl was buried or dig his own grave. Phelps later repeated the confession to a TV news crew waiting in a motel room.
By the time he got to the police station, he had recanted.
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