LINCOLN — David Phelps is a desperate man.
Serving a life sentence for a crime he says he didn’t commit, he’s looking for any scrap of information or legal maneuver that will set him free.
The ultimate discovery would be that of Jill Cutshall — dead or alive. That’s the 9-year-old Norfolk girl who disappeared 25 years ago.
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Phelps said investigator Steve Hecker with the Norfolk Police Division started questioning him about Jill Cutshall in June 1988 — 10 months after she disappeared.
They did several interviews over the next several months.
Phelps said he never really knew Jill — only that she was the daughter of a friend, Roger Cutshall. Phelps stayed on and off at the McNeely Apartments where Jill was living with Roger and stepmother, Sheila. The apartments were located in the 200 block of South Fourth Street before being torn down in 1990.
Phelps alleges Hecker falsified police reports, putting words in his mouth that Phelps claims he never said — like the part about Phelps being attracted to little girls. And where he was at exactly when Jill disappeared.
Phelps said he was either working for a Norfolk man mowing lawns that day or at his girlfriend’s house.
“I tried to be straight with him, but he said that I was changing my story all the time,” Phelps said about trying to recall his whereabouts on a particular date almost a year later.
Phelps said he talked to Hecker voluntarily because he had nothing to hide and he had confidence the police were going to find Jill.
Meanwhile, Phelps’ sister told Jill Cutshall’s mother, Joyce Mosley, and the private investigator she hired, Roy Stephens, that she believed he had something to do with Jill’s disappearance.
Then, on Jan. 4, 1989, Phelps said Stephens “abducted” him and took him out to Wood Duck wildlife area near Stanton where Jill’s clothing previously had been found.
Phelps said he was marched around the area, handed a shovel and told to dig his own grave. And then Stephens fired a handgun.
“He shot at me,” Phelps said. “He said he fired in the air, but you don’t hear a bullet whiz past your ear when it’s fired vertical from behind you — at least I wouldn’t think so.”
Stephens told Phelps, “You’re going to tell me where that kid is even if you have to make it up.”
Phelps said at that point he was scared for his life. So he concocted a story. He can’t even recall now what he said, but he included a description of Jill’s underwear when asked specifically about it.
He repeated his story to an Omaha television crew that was waiting for Stephens at a Norfolk hotel later that day.
When he was taken into police custody, Phelps told them that Stephens threatened him with the gun, and they released him.
“I can tell you honestly, I did not commit this crime,” Phelps said. “All I want is the damn truth to come out for everybody.”
On trial for his life
In December 1989, Jill’s mother started a petition drive to put the matter before a grand jury. This occurred days after national media called attention to the case on a segment of CBS’ “60 Minutes.”
Phelps testified before the grand jury, saying he was confident that if he told the truth, the investigation would turn away from him.
“I didn’t have an inkling at that time that they were looking for someone to hang just period, no matter who it was,” Phelps said.
During his testimony, there were a lot of questions about his sexual history and preferences that made him uncomfortable, he said.
He recalled one grand juror asking him how often he had sex. When he answered, the juror laughed and said, “I’m older than you, and I have more sex than that.”
“Everyone cracked up like I’m the butt of a joke,” Phelps said. “I thought that was an inappropriate comment from a grand jury.”
Ultimately, the grand jury handed down an indictment. Hecker came to arrest Phelps in Perry, Iowa, where he was working and living with his wife and daughter.
He was extradited back to Madison County to stand trial on a charge of kidnapping with intent of sexual assault of a child.
Phelps said the most difficult part of the trial was listening to a former employer accusing him of kissing a 7-year-old girl.
The thing he regrets the most is not testifying in his own defense at trial.
“I was just too big of a scared kid back then to stand up for myself when it really mattered,” he said. “The biggest thing I’ve learned out of this is be careful who you’re around and what you say. When it’s important to stand up for yourself, you must.”
Phelps said he believes hysterics had a lot to do with his conviction.
“It was a highly emotionally charged situation with people looking for answers about what happened. They wanted someone to pay to make them feel safer. Every one of those jurors had decided I was guilty before they were even selected for jury trial,” Phelps said he believes.
When he heard the word “guilty,” he felt like someone took a baseball bat to his gut.
“I thought, ‘My God, what about Jill? Are they still going to look for her?’ ” he said.
He had no idea that the sentence imposed would be life in prison. He was left with astounding disbelief.
Decades in prison
For the first five years in prison, Phelps said he was “bitterly” angry and spent his days plotting revenge. But eventually he realized he was more mad at himself than anyone else.
“I let this happen to me,” he said.
Phelps said he wished he would’ve disassociated with certain people, kept a journal so he would’ve had a clear idea of his whereabouts on certain days and had an attorney present when talking with police.
Now, Phelps spends his time in prison creating abstract art and watching real-life court shows on TV.
“I’m looking for anything that will help lead me to the truth,” he said.
He underwent hypnosis in prison, hoping it would provide some additional answers about his case. It didn’t work.
He’s on the last leg of any legal maneuvers left, but he plans to file a motion based on a violation of constitutional rights. He will propose that a sentence of life in prison without parole is cruel and unusual punishment.
For his own safety, he’s placed in protective custody at the Lincoln Correctional Center. There are limited opportunities for him when it comes to recreation and programs.
There are letters and phone calls occasionally. But those are only distractions from his ultimate goal — to find answers.
“My heart goes out to the Cutshalls and their families and Jill herself because we don’t know where she is,” Phelps said. “I wouldn’t want that to happen to anyone.”
But he’s admittedly also desperate for his own freedom.
“I’m praying every night and meditating that the truth will come out on this case eventually,” he said. “There hasn’t been a day that’s gone by that I haven’t thought about Jill and this case.”
In his fitful dreams, Phelps finds new information, is found innocent and set free.
“Hopefully, a little miracle will happen,” he said.
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Coming tomorrow: What the jurors who convicted David Phelps have to say, 25 years later.