High court denies man new trial over diary

2013-06-14T18:00:00Z 2013-06-14T18:07:13Z High court denies man new trial over diaryBy LORI PILGER / Lincoln Journal Star JournalStar.com

A man in prison for life for kidnapping a Norfolk girl in 1987 has failed in his efforts to get a hearing to consider new evidence he believes could prove he didn't do it.

The Nebraska Supreme Court said Friday that David C. Phelps' claims, which centered on diary pages that turned up a year ago in another trial, weren't sufficient to warrant a hearing.

"Phelps' allegations fall far short of the 'extraordinarily high' threshold showing of actual innocence," Justice Kenneth Stephan wrote.

At oral arguments before the court in May, Phelps' public defender argued he was entitled to a hearing to consider the diary that surfaced during the murder trial of John Oldson in the 1989 disappearance of Cathy Beard of Ord and seemed to document the abduction, rape and murder of four women or girls at a farm near Chambers.

Among them was Jill Cutshall, the 9-year-old girl Phelps was convicted of kidnapping, who disappeared from her baby-sitter's front steps early on Aug. 13, 1987.

Three months later, a hunter found her clothes in a wildlife area southeast of town. Her body never was found.

In 1991, a Madison County jury found Phelps guilty of kidnapping her.

Phelps maintains he didn't do it.

In seeking the hearing, his attorneys with the Madison County Public Defender's Office pointed to the diary, which surfaced in March after Oldson was charged with killing Beard, who disappeared from the Someplace Else Tavern in Ord in 1989.

Phelps' attorneys called it newly discovered evidence that raised serious questions as to his claims of innocence.

In Friday's opinion, Stephan said Phelps wasn't procedurally barred, as a Madison County judge ruled, because he has filed two post-conviction motions already.

Still, the court ruled the hearing wasn't justified because his claim fell short of the threshold for actual innocence, particularly considering his presumption of innocence disappeared once he was convicted.

In a brief to the court, Assistant Nebraska Attorney General James Smith argued that Phelps had nothing to support the authenticity of the diary or to prove it would have been admissible as evidence. An inmate could write a diary, mail it to someone and create publicity over its existence, he argued.

In the end, the Supreme Court agreed it wasn't enough.

"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 of the crime. His allegations are speculative and conclusory," Stephan wrote.

In 2007, Phelps lost a request for DNA testing on stamps from postcards sent in October 1987, on Jill Cutshall's clothing and fingerprints on branches, two pennies and six keys.

The high court ruled then that exposure to the elements and extensive handling of the evidence justified a decision not to test it.

Phelps is serving his sentence at the Lincoln Correctional Center.

Reach Lori Pilger at 402-473-7237 or lpilger@journalstar.com or follow her on Twitter at LJSpilger.

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