LINCOLN — The State Board of Pardons, without discussion, rejected Tuesday a commutation request by David Phelps, who claims he was wrongly convicted of kidnapping with intent to sexually assault a 9-year-old Norfolk girl 34 years ago.
The disappearance of Jill Cutshall drew national attention, including a “60 Minutes” episode, about missing children and the bizarre circumstances surrounding the case. Her body was never found.
Phelps, who had been a tenant in the Norfolk apartment building where Cutshall lived, has long claimed that he was threatened and coerced into a confession by an armed and unlicensed private investigator, Roy Stephens, who had been hired by Cutshall’s mother. Phelps is serving a life sentence.
Seventeen months after Cutshall disappeared, Stephens — who had lied about a past felony to obtain a private investigator’s license — drove Phelps to a state wildlife area near Stanton where some of Cutshall’s clothing had been found. He handed Phelps a shovel, and told him that he could either find the girl’s body or dig his own grave. At one point during the search, Stephens fired a .45-caliber handgun over Phelps’ head.
Phelps, then 24, ultimately broke down and confessed that he had held the girl down while another man molested her. Phelps claimed that he left Cutshall and the unidentified man behind at the wildlife area on Aug. 13, 1987.
A few minutes later, Phelps repeated his confession to a TV news crew, invited to Norfolk by Stephens, on a 74-second video recording in a motel room as an armed associate of Stephens stood nearby.
After authorities did not arrest Phelps, Cutshall’s mother, Joyce, employed a little-used state law to petition for the calling of a county grand jury, which indicted Phelps.
The Nebraska Supreme Court, in a 1992 ruling, unanimously upheld Phelps’ conviction, saying that his confession, given to TV reporters, was admissible. The court rejected assertions that he was coerced by a “would-be” private investigator.
Phelps tried and failed to get his case reviewed after a diary surfaced in a 2012 murder investigation in Ord that described the sexual torture and deaths of four girls and women in a storm cellar, including one named “Jill Dee.”
But the State Supreme Court ruled the diary a fraud. Phelps also failed in an attempt in 2007 to get DNA testing done on evidence gathered in Cutshall’s disappearance.
In his request for a commutation, which was filed in July 2017, Phelps wrote that there was not “one piece of evidence proving my guilt.” He wrote that he was kidnapped and forced to provide a confession, and that the diary provided evidence that he was innocent.
If Phelps’ sentence had been commuted from life to a period of years, he would have been made eligible for release on parole.
Nebraska Attorney General Doug Peterson made the motion Tuesday to reject Phelps’ request, as well as the requests of four other inmates serving either life sentences or long prison terms.
That brought an objection from an Omaha attorney representing one of the inmates, Brian Adams, who was sentenced to life in prison for the slayings of two gas station clerks in 1967.
Lawyer Steve Gehring said that Adams, who he met through a prison ministry program, had spent 53 years in prison, perhaps the longest term of any Nebraska inmate, was a model inmate and deserved to at least be allowed to testify before the board.
Gehring continued to speak even after Gov. Pete Ricketts, who chairs the Pardons Board, said that the board wasn’t taking testimony Tuesday on the commutation requests and ruled Gehring out of order. The board then voted 3-0 to reject the five commutation requests.
The Pardons Board has routinely turned down requests from inmates with life sentences since it allowed the release of convicted murderer Laddie Dittrich in 2013. Shortly after Dittrich was released on parole, he was arrested and convicted of molesting a 10-year-old girl.
Gehring, after his appearance before the board Tuesday, said that Dittrich didn’t have a spotless prison record like his client, and that he was “perplexed” that the Pardons Board has taken such a “hard attitude” toward inmates with life sentences.
“He’s not the same guy he was when he was 18,” Gehring said of Adams. “If they looked at these cases, they’d see that some of these lifers aren’t dangerous anymore.”