by Fred Rosen
He had never worked a death-penalty case, and the possibility of a client facing death terrified him. But that was not unusual. No lawyers in Michigan have ever tried a case where the ultimate penalty for conviction was death for one simple reason: the death penalty was outlawed in Michigan during the nineteenth century.
One of the first things Donohue thought about after Midland County Prosecutor Norman Donker asked him to represent David was what would happen to the boys when they were sent back to Pennsylvania. Pennsylvania had the death penalty, and while no one had been executed in the state for thirty-three years, their new governor, Tom Ridge, had already signed more than forty death warrants. Ridge was determined to clean the cobwebs out of the death chamber and put it back into use. That’s why Donohue was very interested when he got word that David wanted to make a second statement.
Donohue hadn’t been there for the first one. No lawyer had, and given David’s age, there existed the strong possibility a judge would throw it out on constitutional grounds. The second statement, with a lawyer present, that would be the one that counted.
Trooper Joe Vazquez of the Pennsylvania State Police and Det. Richard Metzler of the Salisbury Township police department had arrived in Michigan and taken up residence at the Holiday Inn. Vazquez was in bed on Sunday, March 5, when he got a call from Bob Donohue.
“Mr. Vazquez, my client, David Freeman, is interested in giving you a statement.”
Vazquez said he’d get back to him. A short time later, the phone rang again.
“Have you seen the morning paper?”
The caller was the Midland County prosecutor, Norman Donker.
“No, not yet,” Vazquez replied.
“Well, there’s a long statement from Birdwell’s mom in it.” Donker went on to describe how Birdwell had told his mom that he had done nothing, that the Freeman boys had done all the murders.
So, that’s why Donohue called me, Vazquez thought. The boys want to contradict Benny.
Quickly, Vazquez engaged the conference room at the Holiday Inn for a 12 P.M. meeting of all the participants. Precisely at noon, Vazquez, his partner, Metzler, Donker, and Donohue began their discussions.
“My client has this proposal,” Donohue began. “It’s in four parts.”
Part one was that the defendant would give a complete and truthful statement as to the events that had occurred in the Freeman house. Part two was that Allentown’s prosecutor, Bob Steinberg, would take the death penalty off the table. Part three was that neither Bryan nor David would give up his trial rights. Part four was that a news person of their choosing would conduct an interview with them so their side of what happened would get out to the public.
After making certain that Bryan’s court-appointed attorney, who had been appointed that morning, was aware of this deal and had agreed to it and that Donohue was speaking for both of them, the cops and the prosecutor voiced a major concern about the last item. They felt that there had already been too much publicity.
“They want it,” Donohue supposedly responded. “I can’t stop them from requesting it. They’re willing to take the rap for what they did, but once Nelson Birdwell said what he said, ratting on them, now they’ll rat on him.”
Vazquez couldn’t agree to the deal just like that. He had neither the power, nor the discretion to take the death penalty off the table. He told Donohue and Donker he’d have to call Steinberg back in Allentown to get the OK. The meeting broke up. It had lasted all of half an hour.
That afternoon, Donker called Vazquez again to see if he’d heard something from Allentown. Vazquez hadn’t. Things were still up in the air.
“I’ll try to get back to you about five or six,” Vazquez said.
That evening, Donohue and Donker were having dinner together when they got a call from Vazquez. The deal had been approved. Steinberg had said “yes.”
A meeting was set up at 9 P.M. at Donker’s office. A finalized agreement was placed on microcassette tape. Present for that recording were Donker, Donohue, Metzler, Vazquez, and James Branson, Bryan’s court-appointed attorney. The operative paragraph of the agreement was that the defendants would give “accurate, complete, and truthful statements” regarding the events of the night in question, and that it was “an irrevocable agreement.”
The agreement was then sealed in an envelope with evidence tape.
Knowingly, David and Bryan Freeman were giving the Commonwealth of Pennsylvania the motive means, and opportunity for the crimes of which they had been accused. Regardless of the fact that they had not given up their trial rights, they were, in effect, condemning themselves to life in prison.
But by talking now, they would not have the death penalty hanging over their heads. And they’d get their revenge on Benny.
Attorneys who were more experienced in death-penalty cases might have told the boys to keep their mouths shut. Let Steinberg make his case. With the good possibility David’s first statement would be thrown out on constitutional grounds, Steinberg would have to work overtime to prove what he had done. But death is an excellent motivator.
These things are clear: Donohue was determined to keep his client out of the death chamber, and David wanted to talk.
It was March 6, 1995, 12:16 A.M. Eastern Standard Time. The place was Midland County Jail, in Midland, Michigan. It was the same interrogation room David had found himself in as before, only this time the players were different.
There was his lawyer, Bob Donohue, for one, someone to protect his rights. And the cops. Not the two from Michigan, but two from Pennsylvania: Trooper Joe Vazquez from the Pennsylvania State Police, and Det. Richard Metzler from the Salisbury Township Police Department.
A technician set up the videotape equipment. All was in readiness, and David was anxious to begin. He wanted to get that son-of-a-bitch Ben!
Donohue and Vazquez went through the preliminaries of David’s Miranda rights, how he had the right to stop the interrogation anytime he wanted, and how no threats had been made to make him talk. David agreed to it all, then signed some forms that he hardly looked at.
“David, try to use the words ‘yes’ and ‘no,’” Donohue reminded him.
Vazquez began.
“I’d like to start in the afternoon of February 26, 1995. Where were you around 3 o’clock?”
“Home. It was me and Bryan, we were talking about going to Wendy’s to get something to eat, and go to the movies.”
They called Ben to tell him of their plans.
“So maybe an hour-and-a-half later, he came over.”
“Who came over?”
“Ben did.”
“You mean Nelson Benjamin Birdwell?”
“Yeah. He picked me and Bryan up. We went to Wendy’s on Tilghman Street. We ate there, and after that, we went to see a movie.”
“When you went to Wendy’s, whose car did you go in?” Vazquez asked. His partner, Metzler, sat silently nearby, close to Donohue, who listened carefully.
“It was Ben’s car—his dad’s girlfriend’s car.”
“What kind of car was it?”
“I don’t really know. An older model.”
“About what time did you go to Wendy’s?”
“Between 4:30 and 5, somewhere in there.”
“How long did you stay at Wendy’s?”
“Until around 8 o’clock. Then, we went to the AMC Theater.”
“Who’s ‘we’?”
“Me and Bryan and Ben went over there to the shopping center, to the AMC Theater, we watched movies over there and—”
“What movie did you go to see?” the trooper interrupted.
“I saw Murder in the First.”
“What time did that start?”
“Around 8 o’clock or a little bit after.”
“Did the others go with You?”
“They went to see this one other movie. What was it called? I forget.”
“In other words, you didn’t go to see the movie that your brother saw?”
“How about Ben? What movie did he see?”
“Same one as my brother.”
“Did you stay for the entire movie?”
“Yeah.”
“What did you do when the movie was over?”
“I went outside and I waited until they came out. When they came out, me and Brian and Ben, we got in the car. We went over to my house, he—”
“What time do you think you got home?” Vazquez interrupted again.
The time line was all-important.
“Who was there at your house?”
“Me and Bryan and Ben, both my parents, and my little brother.”
“Where were they when you got home?”
“My dad and my little brother was sleeping. My mom was waiting for us to get home.”
“Where was she waiting at?”
“Upstairs in the living room”
“What was she doing?”
“She was lying on a couch, reading, in the living room.”
“Was she covered?”
“Sure.”
“When you guys came home, how did you enter the house?”
“It was me and Bryan. We have a bathroom downstairs. We used to open the window and get in that way.”
“So your mom didn’t know that Ben was there when you first got there?”
“No. Not when we first got there.”
“Is that a normal thing you guys used to do, sneak in through that bathroom window?”
“Yes.”
“When did your mother realize that Ben was in the house?”
“Maybe fifteen or twenty minutes later, she came down. We were in my room on the lower level.”
“Next to the bathroom?”
“Yeah.”
“Where you left the window open to let Ben in?”
“Yeah.”
“When your mother came downstairs, what happened?”
“She came down a couple of times.”
“OK, the first time, what did she do? What did she tell you guys?”
“Well, she felt it was time to go to sleep, getting pretty late, we got to get up early tomorrow, better try to get some sleep, and then she went back upstairs.”
“What did she say about Ben being there?”
“She didn’t see him the first time. He was hiding in my closet.”
“In other words, you heard your mom coming. You or your brother do any drinking or drugs that night?”
“No.”
“So why did Ben go back to the house with you?”
“We were trying to call a bunch of people over to go drinking that night. That was the only reason he was over.”
“Did you accomplish that?”
“No,”
“You never got to go drinking? You’re only fifteen. OK, after the third time your mom found Ben, tell me what happened.”
“She told him, ‘This is the last time I’m going to tell you to leave.’ He said, ‘I’m going.’ That was the time he moved his car.”
“He came back in through the bathroom window, didn’t he?”
“Yes.”
“What happened after that?”
“We were sitting and talking for a while and got some stuff to eat. I brought down some cookies and some milk and stuff for everybody.”
“Whose room were you sitting in?”
“My room.”
“Everybody was in your room at this time?”
“Yeah.”
“Your mom’s still upstairs?”
“Yeah.”
“Was she on the couch when you went back upstairs for the milk?”
“Yeah, then she came down again. That’s when everything happened.”
“Go on.”
“She came down pretty quick. I didn’t really see what happened, but it happened then.”
“What happened? You’ve got to be kind of specific, David.”
“I didn’t really see anything that happened to her.”
“Where were you when it happened to her?”
“I was in that room. The family room downstairs, where my Aunt Val used to live.”
“How did you know something was happening?”
“Because I heard my mom. She was saying something like, ‘Bryan, what are you doing?’ and stuff like ‘Help’ and ‘Stop it!’”
“What did you do at that point?”
“I was like, ‘Oh shit, fuck!’”
“Did you come out of that room?”
“Yeah.”
“What did you see?”
“I saw it. It was my mom and my brother out in the hallway. He said, ‘Go upstairs and get Dad and Erik.’”
“OK. Stop. You were just about to say when I interrupted you, which I shouldn’t have, you were just about to say your mom was saying, ‘Stop, what are you doing,’ and you said your brother was just about to say something to her?”
“No.”
“What did your brother say?”
“We went up the stairway to the second floor, where the living room and dining room are. We went down the hallway to my dad’s room.”
“Did you have a weapon in your hand at that time?”
“Ben had the weapon.”
“What was it?”
“It was like a pickax handle, a big wooden handle.”
“Where did he get that from?”
“I don’t really know. Maybe from downstairs someplace.”
“Was Ben in the room when your brother Bryan … What did your brother Bryan do to your mother?”
“He stabbed her.”
“Did you see him stab her?”
“No.”
“How did you know he’d stabbed her, then?”
“After everything was done and we went upstairs, he told us what he did.”
“OK, so when you went upstairs after your father and your brother, Ben already had the pick handle in his hand?”
“Yeah.”
“What did you do?”
“As soon as you turn the corner, you go into the closet—”
“I know right where it’s at; it’s on the left side,” said Vazquez, who had been in the house.
“He told us to go upstairs to get my dad and little brother.”
“Your brother Bryan Freeman told you to go upstairs and get your brother and father?”
“To kill them.”
“Had you ever talked about killing them before?”
“We did, but we didn’t mean it. It wasn’t serious.”
“What did you do before?”
“We talked about killing them. We talked about killing other people. We never thought we’d ever do it.”
“Did you ever talk about how you would do it?”
“No.”
“Did you ever tell your mom you’d kill her?”
“No.”
“Do you ever recall telling your friends at school you were going to kill your parents?”
“I don’t really recall. I was, like, in placement for a while. A lot of them told me I said that. That’s what I thought I went away for. I didn’t really belong there. I never thought we’d end up killing them. You’ve got to believe me.”
“When Bryan told you, ‘Go upstairs and get your dad and your brother,’ you understood what you were supposed to do?”
“Yes. To kill them. It was me and Ben, we ran upstairs.”
“Slow down. Take your time.”
“Right, the closet,” David agreed. “There is a big, golden-colored baseball bat in there.”
“Your bat?”
“Yes.”
“Is it wooden or aluminum?
“It’s aluminum.”
David took the bat and proceeded down the hallway.
“We went right up to my dad’s room,” David continued. “We argued for, like, a couple of seconds about who was going to go in first. Ben kept telling me, ‘Go on and do it.’ I said, ‘You do it.’”
“Did you turn the lights on in the hallway?”
“Was your father asleep or awake at this time?”
“He was asleep.”
“Was his door closed when you got there or open?”
“Open.”
“OK, who goes into the room?”
“Ben goes in first. He hit him in the face.”
“Whoa. Slow down. From which side did Ben approach your father?”
“From the left.”
“And your father was in the bed facing you?”
“Yes. And I went around the right side.”
“Then what happened?”
“Ben took the handle and hit him in the face, busted him up pretty good there.”
“How was your father laying?”
“Straight up with his hands at his sides.”
“What happened when Ben hit him?”
“He put his hands up a little bit.”
“Like this?” Vazquez raised his arms slightly.
“Yeah. And then just dropped them down. Right after that, I hit him once, and then I hit him three more times.”
“Where’d you hit him?”
“All in the face. And Ben cut his throat.”
“Where did he get the knife from?”
“The kitchen or something.”
“Before you went down the hallway?”
“Yeah, I think so.”
“Did you see him get it?”
“No.”
“But you knew he had it?”
“Yeah, I knew he had it.”
“Where did he have it? You told me he had the pick handle?”
“He had that in one hand and the handle in the other.”
“What was the discussion about at the door?”
“Who was going to do it.”
“Who was going to do what?”
David looked pained.
“Who was going to hit him first.”
“How about the knife, was there any discussion about stabbing or cutting him?”
“No.”
“Well, back in the room, Ben hits first?”
“Yeah, Ben.”
“You hit him in the face. Who hits him in the chest?”
“Ben did. Ben hit him like four times in the face. He had, like, this real cheap knife. I tried to stab him in the chest. When I tried, it bent, so I just chucked that.”
“Was it a big knife?”
“It was like about that long (indicating a few inches with his hands) with a brown wooden handle.”
“What happened to it?”
