by Fred Rosen
The police looked at the crimes as one. Yet, to anyone familiar with parricide, the murder of parents by their children, it was two different crimes.
There were the deaths of Dennis and Brenda, in which the Freeman brothers had implicated themselves. They had also implicated Ben, in particular in the deaths of Erik and Dennis.
The only blood relation of Ben Birdwell’s who wound up dead on the second floor of the Freeman house was Erik; Dennis was his uncle by marriage. If Ben had participated in the murders, he was not guilty of parricide. He had no blood relation to Dennis.
As for an emotional relationship, it was tenuous at best. And while Erik was Ben’s first cousin, the difference in their ages (six years), plus the fact that they saw little of each other growing up, practically assured that Benny would have little feeling toward the boy.
Once they reached Pennsylvania, a new problem existed: In that state, the boys did not have counsel. For Ben Birdwell, that problem disappeared almost immediately. His parents hired Richard Makoul, one of the state’s best defense attorneys to represent him. The dapper and bearded Makoul, had previously defended Ben’s father, so he was familiar with the family history. Makoul, though, had been warned about taking on the case.
He had had an off-the-record conversation with Allentown District Attorney Bob Steinberg, who had heard he was going to take the Birdwell case.
“Don’t get in. It’s death penalty,” Steinberg warned.
Steinberg indicated to Makoul that there were three weapons used in the murders, implying three people had wielded them. One of those, Steinberg felt, was Ben Birdwell.
Makoul didn’t take kindly to the warnings. He took on Benny as his client.
As for the Freeman brothers, they did not have the luxury of private counsel. With no assets between them, and with no one from their family coming forward to help them, their cases were assigned to the Allentown Public Defender’s office. Public defenders Earl Supplee and Jim Netchin represented Bryan and David respectively. But almost immediately, a legal conflict developed.
The Allentown public defenders were privately critical of Bob Donohue’s willingness to broker a deal for the Freeman brothers’ cooperation in return for the death penalty being waived by prosecutor Steinberg. They felt they could have gotten a better deal, but they were now hampered by the binding agreement. Then there was the matter of complicity.
David seemed to be less culpable, at least legally, than his brother Bryan. After all, it was Bryan who’d started the ball rolling. It could be legally argued that when David struck his father, he was already dead from the blows he had received from Benny, making David only guilty of maiming a corpse. Also, it was conceivable that given David’s acknowledged history of alcohol and drug abuse, he was stoned the night of the murders and didn’t know what he was doing.
A conviction of first-degree murder requires that the state show that the defendant was in his right mind and knew precisely what he was doing and had formed an intent to commit murder prior to the crime. It therefore became clear that the brothers’ interests might be different.
There also existed the possibility that David might testify against his brother to avoid extensive jail time. For all these reasons, the judge would not let the public defender’s office represent David.
“It’s because of a possible conflict, and that’s all I’m going to say,” said Chief Public Defender Robert Long, in explaining the change.
Long and his office were known for their taciturn replies to reporters’ questions, and this case would prove no different.
Reports began circulating that a deal might be brewing between prosecutors and defense attorneys. Richard Makoul was publicly quoted as saying that David was trying to strike a deal with Steinberg by implicating Birdwell.
“If he charges Ben (with the homicides), there’s going to be a real fight in the courtroom,” Makoul warned.
As to Ben’s part in the whole thing, Makoul said, “Basically, he said he saw Mrs. Freeman being murdered. Bryan just snapped. David Freeman vomited after watching his brother stab his mother. Bryan Freeman then threatened to harm his brother and cousin, who followed him out of fear.”
Makoul would not reveal Ben’s recollection of the other murders. He was excellent at playing the media card. Makoul knew how to utilize the media to get his point across, which is especially useful in cases where one knows the defendant is guilty.
After interviewing Benny, who adamantly maintained his innocence of any crime, Makoul became convinced that his client was actually innocent. In confidence, he told this author that it would be a tragedy if he were charged with murder.
For his part, Steinberg revealed that he had spoken to the defense attorneys, but he would not reveal whether their conversations had covered any substantive issues. He did say that neither he, nor his investigators had sought a meeting with the Freemans since their return from Michigan.
Steinberg was tightening the noose. He had trouble with the statements of David and Bryan, and especially Ben. He felt they weren’t consistent; there were too many holes; and the accused had not been truthful.
In preparation for the upcoming formal arraignment, he dispatched Joe Vazquez and other investigators throughout Lehigh County to gather any other evidence that could be used against the Freemans and Birdwell.
Steinberg had made a deal and he would adhere to it … maybe. If he felt that the accused were lying, the death penalty would be brought back to the table, despite the Michigan agreement.
David’s case was subsequently assigned by presiding Judge Lawrence Brenner to Wally Worth and his associate Brian Collins. They made an interesting team.
Worth is a crusty, country-type lawyer, a force in Republican politics in Lehigh County and probably the county’s most-respected defense attorney. Worth’s associate was Brian Collins, a young attorney with a pugnacious manner and a keen legal mind. Collins had a lot of experience working death penalty cases. Despite the Michigan deal, he knew there was always the possibility it could fall apart and his client would once again be facing death.
A profound opponent of the death penalty, he knew death was a real possibility in this case, that a fifteen-year-old could be sentenced to die and killed by lethal injection. He was determined to do everything in his power not to let that happen.
After accepting the case, the first thing Worth did was give out a public statement in which he said, “Our client has not talked to us about any deal.” Mindful of the fact that none of the defendants had given up their trial rights, Worth continued, “I don’t have anything to say about a deal.”
Privately, after they’d had a few more chances to talk to David, Worth and Collins decided that the best they could hope for was to cut a deal reducing the charges against their client from first- to third-degree murder. If David pleaded guilty to third-degree murder, he’d go to jail for ten to fifteen years, but at least when he got out he’d be young enough to start a new life.
If David, or for that matter, Bryan, were convicted of first-degree murder, even without the death penalty, each would be sentenced to life in prison, and in Pennsylvania, life means life. There is no parole.
The only way to get out is if the governor gives you clemency, and in a state as conservative as Pennsylvania, that was not likely to happen anytime soon.
The arraignment was set for April 26. Prior to that, Nelson Birdwell Sr., the grandfather, announced to the press he had changed his mind, that it was in everyone’s best interests that the boys just serve time. Birdwell visited his grandchildren in jail.
“Keep your brother and cousin out of trouble,” Birdwell implored Bryan. “Set the record straight.”
Birdwell said Bryan responded, “Don’t worry, I’ll take care of the whole thing when the time comes.”
Birdwell then told the press that he did not believe Benny had participated in any of the killings. As for David, “I just asked him how everything looked to him and he said, ‘It looks like I’ll be
in here the rest of my life.’ I asked him if he could handle that, and he said, ‘I don’t know.’ He was sad.”
Asked by a reporter what that sadness signified, Birdwell replied, “I would say that it means that he is very remorseful, almost hopeless.”
Having made his decision to stand by his grandsons, Nelson Birdwell Sr. then went national with his campaign to help his grandsons. He went on a national talk show, where he told the studio and viewing audiences how his grandchildren were actually good boys, who had gone bad, and how they could be helped. One of the guests on the same panel was the widow of Alan Berg, the Denver radio talk show host executed by white supremacists because of his liberal beliefs and his religion.
Mrs. Berg told Birdwell that he had no idea how evil his grandsons were, how virulent hate was. He just didn’t have any concept. Birdwell listened, but with a glazed look in his eyes.
Bob Steinberg does not look like a tough-as-nails district attorney. He is a lot sharper than can be imagined, however.
Steinberg began his professional career working as a public defender in the same Allentown office that was now defending Bryan. He worked for Bill Platt, the head public defender. They became friends and allies. When Platt became district attorney, he brought Steinberg along as his assistant. When Platt left to become a county judge, one of the last things he did before he left office was to appoint Bob Steinberg to serve out his term.
Originally a Democrat, Steinberg switched his political allegiance to the Republican Party because the Republicans control Lehigh County politics.
Despite his PD background, Steinberg took a hard line toward lawbreakers, preferring to put ’em in jail and get ’em off the street, and to hell with analyzing them! He knew the system was imperfect; he knew that stringent sentences did nothing to stop crime at its root cause. Jails are there for one reason and one reason alone: to punish. And his job as district attorney was to make sure the bad guys, and gals, got all that was coming to them.
After a preliminary investigation, Steinberg had discovered the dysfunctional nature of the Freeman family. There was enough there to make the defendants slightly sympathetic, so Steinberg had been willing to go along with the deal that Donohue had brokered: If they’d tell the truth in their confessions, he would take the death penalty off the table. He had that power.
All they had to do was give the truth in their statements, and they would not face death. They could be tried without that hanging over their heads.
Steinberg had confessions, motive, means, and opportunity. So why didn’t he feel completely satisfied? Closeted alone in his office, Bob Steinberg was surrounded by law books and diplomas, awards, and file after file of pending legal cases.
Outside Steinberg’s window was a grand view of Lehigh County, a place that had in the past few years started to see more than its fair share of crime, as the gang problem that had plagued the rest of the country had moved within the county’s borders. Out there, too, were the hate mongers.
So the DA passed the night reading the defendants’ statements, trying to reconcile what he felt were inconsistencies. In the end, the statements just didn’t feel right. The boys hadn’t answered truthfully, after all.
The deal was off.
He announced publicly that he would accept a plea from any of the defendants to murder in the first-degree with a recommendation of life in prison. Otherwise, if they went to trial, he would death qualify the jury. In Pennsylvania, a prosecutor does not have to ask for the death penalty until after the defendant is convicted of first-degree murder.
During voir dire, the early stage of a trial when the attorneys question prospective jurors, they simply ask them if they could apply the death penalty upon conviction. The prosecutor does the best he can to get twelve jurors who say they could, and whom he believes, given half the chance, would condemn the prisoners at the bar to death.
Steinberg intended to hold the death penalty over David and Bryan as long as he could, right up until sentencing if he got a conviction, which he was sure he would get, given their statements. As for Birdwell, he began to see him as an instigator. Steinberg made public statements that whenever trouble occurred in the Freeman household, Ben Birdwell was there.
Despite the fact that no one his office who was questioned said that Benny had made any threats against the family, Steinberg became convinced that Benny had killed Erik, battered Dennis, and then, as the brothers had said, gone around with the pick handle and finished the job.
Benny, with his bland, babyish face, with the polite manner, with the “berserker” tattoo on his forehead, was the one Steinberg wanted to get. But how could he get him when there was only the boys’ word against his?
“The district attorney can’t charge Ben without evidence,” asserted Ben’s attorney Richard Makoul.
Steinberg pored over the details of the case, and then he found out about the the shirt, the blue T-shirt Benny had been wearing when he was captured. According to the Michigan police technician’s report, it bore blood spots.
And it was now in the possession of the Pennsylvania State Police.
Steinberg made immediate plans to send the T-shirt out for DNA testing. If it came back positive for any of the decedents’ blood, he would charge Benny with first-degree murder.
April 25, 1995
Metal detectors had been set up outside courtroom number two on the second floor of the Lehigh County Courthouse.
The courtroom is old-fashioned by today’s standards, with row upon row of wooden benches separated by a central aisle, a slatted divider, and then the main part of the floor, with prosecution and defense tables side by side, flanking the judge’s bench, and to the left, the jury box. The place was packed, filled with thirty or so reporters, the rest witnesses, lawyers, and spectators, who wanted to be in at the beginning of what promised to be an exciting trial.
At the defense table on the left, sat two of the defendants, David and Bryan. Alongside David were his defense attorneys, Wally Worth and Brian Collins. Next to Bryan were Earl Supplee and Mike Brunnabend, from the public defender’s office. Each boy wore a sky blue, nylon jacket. Ben Birdwell wore the same outfit, but he sat in the jury box because he was going to be arraigned separately at a later date. His attorney, Richard Makoul, dapper in a double-breasted, worsted suit, sat on one of the benches for counsel that lined the railing encircling the courtroom.
Makoul immediately made a motion before Judge Lawrence Brenner to sever Benny’s case. The last thing he wanted was for his client to be tried alongside the two Freeman Brothers, whom the media had made out to be the next coming of Jack the Ripper. Steinberg agreed with Makoul’s motion, and the judge moved on to the business at hand.
“Mr. Steinberg, ready to begin?” the judge asked.
“The state calls Isidore Mihalikis.”
Mihalikis was the coroner for Lehigh County.
The purpose of an arraignment is to present the basic facts of a case necessary to hold a defendant over for trial and to see that he’s charged with the crime indicated. It is a formality, because everyone knows that unless the state has an exceptionally weak case, the judge will bind the defendants over for trial. What it does do, though, is force the prosecution to show the outlines of their case. And while it is a hearing, the same rules of evidence and examination apply as at a trial.
Steinberg is nothing if not thorough. He had spoken to all his witnesses before they’d testified, and like any good lawyer, he knew what they would say before they said it and tailored his questions accordingly.
Steinberg asked Mihalikis to review his findings for the court.
“Dennis Freeman was struck first,” Mihalikis began, consulting a loose leaf binder full of notes and reports that he had set up on the railing of the witness box. “He had injuries on the face, and the right upper arm and hands, which I would say were defensive wounds.”
That is, as he was being struck, Dennis had reflexively raised his arms to ward off the deadly blows.
“There was blunt force to the head, about six blows, I should say. To the chest, where there was an extensive amount of bruising, seven blows.”
“Could you be more specific?”
“Yes. His ribs were fractured, and so was his breastbone. His heart and lungs were bruised. There was a transverse cutting wound of the neck. It was superficial, though, going from side to side. His nose was injured, the orbits, the nose. The left jaw was fractured.”
Mihalikis turned the page.
“There is a gaping, four-inch fracture of the entire frontal area of the skull. It lacerated the covering of the brain.”
“Which resulted in?”
“The brain mushroomed outside the skull.”
“How many blows did Mr. Freeman take to the face?”
“He was struck in the face approximately three to five times. The bones projected through the skin.”
The courtroom was silent.
At the defense table, David and Bryan hung their heads. They were either tired or ashamed of what they were being accused of doing.
“Could you describe the kind of instrument used to inflict this type of damage?” Steinberg wondered.
“A rounded, broad-based weapon. The blood spattered because a flat instrument was used to the head while the weapon that damaged Mr. Freeman’s right arm had a projection,” Mihalikis replied.
That made two types of weapons. Mihalikis theorized that the flat side of a pickax handle and a baseball bat recovered at the scene probably were used to inflict the head injuries. The supposition was that David had wielded it, Benny the other. As to the weapon with a projection that Mihalikis referred to as a piece of exercise equipment, a bar to a dumbbell, was recovered at the scene. That had done the arm damage.
“Mr. Freeman died from massive head injuries and facial trauma induced by blunt force,” he concluded.
Steinberg then asked the coroner to describe the injuries to Brenda Freeman.
“Sharp-force injuries. Cut and stab wounds. Blunt-force stab wound to the tip of her right shoulder that went through and through to the right arm, five-and-quarter (inches),” Mihalikis testified. “There was a stab wound to her back,” he continued. “To the right scapula.”
