by Fred Rosen
He looked a lot older. About Bryan and David, who he now regularly visited in jail, he said, “The older one is keeping the younger one intact. I am, you might say, their person outside. Everybody needs one.”
He said that they spent their days writing letters and watching television. The brothers still shared a cell, while Benny was housed in a separate unit.
Apparently, they figured they had nothing to worry about regarding the death penalty. They still figured that the deal they’d made in Michigan was on.
“They don’t look to get out for the rest of their lives,” the elder Birdwell said.
As to the current matter before Brenner’s court, Birdwell Sr. gave an interview to one of the local papers in which he said that the prosecutors should indeed release the tapes in question to the press.
“I don’t think anything should be kept from the public,” he said.
At first he hadn’t wanted the tapes released, particularly a shot that showed the body of his daughter Brenda lying on the floor in her own blood, her nightgown hiked above her waist. Now, he said, he wanted the tapes, with a bit of judicious editing, released, because their release would help ensure his grandchildren of a fair trail.
Birdwell Sr. explained that the reason for his change of mind was that after prosecutors showed the video in court, he figured he would trust a jury to be fair in the case more than the officials within the court system, whom he referred to as “dictatorial.”
“Why didn’t Steinberg practice his own counsel from the start instead of now contradicting his own action?” Birdwell Sr. said in a prepared statement.
Behind the scenes, Steinberg had been informed that the elder Birdwell had anti-Semitic tendencies that had been communicated in letters to officials in the judicial system. That raised an interesting question: Could Birdwell Sr. have communicated those same sentiments to his neo-Nazi grandchildren, who had then ultimately embraced anti-Semitism? Maybe the answers would come out at the certification hearing in the fall.
June 15, 1995
It was a warm, dry day, a perfect day for the Salisbury High School seniors graduating into the sunshine of their lives.
Principal Michael Platt described the Class of 1995 as a mosaic.
“It is the portrait beneath the surface that I would like to address. Each of our graduates carries with them a powerful palette of colors. Our graduates are the artists and the artisans of their dreams. Make each brushstroke meaningful to you, consistent with who you are and what you believe,” he said, in addressing the graduates at the hour-long graduation ceremony at the high school stadium.
Platt mentioned nothing about Bryan Freeman, who, when he’d last seen him in person, was arguing with him. He mentioned nothing about the murders, or the fact that Bryan had been an honors student who would have graduated. But one graduate, Stephanie Kramer, seemed to be addressing the Freeman brothers when she told the crowd, “We need to keep our eyes open to find the happiness we all desire. We can find it in our friends, in our family, and in ourselves.”
Beautiful words, with more than a hint of truth, but what she had not said was that in order to reach those goals, it is best to grow up in a household where everyone loves and respects everyone else and shows it. And if you happen to grow up in a house where those things are not present, life might not work out the way you’d like.
June 30, 1995
Acting on a tip, Joe Vazquez headed sixty miles south to Philadelphia and the federal courthouse at Sixth and Market streets. There, he met with Assistant U.S. Attorney Joseph G. Poluka, who had arranged for the state trooper to interview Ivan Smith.
During the interview, Smith was represented by Assistant Public Defender David Kozlow. Smith, who hailed from Brooklyn, New York, had some information about the case that he wanted to share.
“I was in the county prison on March 16th and 17th.”
“This year?” Vazquez asked.
“Yeah. This year. And I spoke with Nelson Birdwell. We were both in the same unit at the Lehigh County Prison.”
A jailhouse informant. Maybe the guy had heard something from Benny that they could use.
Vazquez was interested.
“Go on.”
“Other guys in the unit, they would ask Birdwell why he did what he did, and Birdwell would just smile and then talk about it.”
“You talked to Birdwell about that night?”
“Yeah. And I made notes of my conversation with him and I still have them.”
“So what did Birdwell tell you?”
“I asked Birdwell why he had been involved in the murders. Birdwell told me that the two brothers did it, not him. Birdwell told me that the brothers had been planning it for years.”
“Did Birdwell say anything about what he saw?”
“Birdwell told me that he had seen the mother being killed. He said he did not see the other two being killed because that took place in a different part of the house.”
“Did Birdwell say how the murders were committed?”
“He said that the two brothers used bats, knives, and clubs to kill the family. Birdwell didn’t specify who killed the mother, he kept saying ‘they.’”
“What did he say about the mother’s killing?”
“Birdwell said that when the mother was on the floor, there was a lot of blood, and that she was screaming a lot.”
That contradicted what David and Bryan had said, Vazquez thought. They’d said she’d never screamed.
“Birdwell said that prior to everything happening, he and the Freemans had been at Wendy’s eating, and then they went to the movies. He said that the brothers talked about killing the parents while at Wendy’s and at the movies.
“Birdwell said that while in the car on the way home, they had listened to racist music. He said the music talked about killing. I said to Birdwell, ‘Man, I know you all didn’t mean to do that shit.’”
“What did Benny say?”
“Birdwell, he replied, ‘Naw, they deserved it.’”
“Did he say why they deserved it?”
“Well, Birdwell told me that the younger brother wanted to kill his parents because they put him in a mental institution. And afterward, when it was all over, they started to drive. Birdwell said he was the one driving the car. He said they stopped at a hotel and saw a report of the murders on the news.”
“Then what did he say?”
“Birdwell told me that they left the motel and went to a farm where the cops got them. He said that while they were in Michigan, they talked about going back to Pennsylvania to make the murders look like a robbery that had happened when they were not there.”
“Did he say anything else about the night of the murders?” Vazquez asked.
“Birdwell said that after it all happened, the oldest brother wanted to stop at his house for some tapes, but he told him that if they did, he might just stay there. So they didn’t stop at his house.”
Not quite true. They did drop the car off that Ben had been driving, but it was true that it was a quick stop and no one went inside.
“Did he say anything else at all about the crime?”
“Yeah,” Smith answered. “Birdwell said that Steinberg knows he’s involved. Birdwell said that he was going to say that since he saw the mother get killed, he got scared and went on the trip with the Freemans because he was scared they might kill him. Birdwell told me that he was going to stick to that story.”
“What else?”
“Well, just one thing more. I asked Birdwell why they killed the little brother and he told me, ‘We had to kill him because he was a mama’s boy, and he would have squealed anyway.’”
Birdwell went on to say that they were talking about killing their parents the day they did it and they were planning to do it the night it happened. Smith then provided copies of notes he had written regarding his conversations with Benny.
There was enough truth in Smith’s statement that it could be used at trial to show Benny’s culpabi
lity in the crimes. Things were going Steinberg’s way.
The summer wore on, a hot one in Lehigh Valley, but no one sweated more than Ben Birdwell.
He was worried about the results of the DNA testing of his T-shirt. Steinberg kept assuring the press, “the results will be forthcoming next week,” and then next week came and went and nothing happened. Steinberg explained that the reason for the continual delay was that DNA testing is very exacting and it takes time.
The DA was hoping that at least one of the decedents’ blood would show up on Benny’s shirt. If he was wrong and it didn’t, Benny could not be charged with murder.
July 6, 1995
Steinberg called Makoul. He told Ben’s lawyer that if Benny pleaded guilty to murder one, he’d take the death penalty off the table and tell the judge he was cooperating with the prosecution. Makoul ran the deal by Benny, who nixed it. Benny adamantly maintained that he hadn’t killed anyone.
July 24, 1995
The document was filed quietly with little fanfare in Judge Brenner’s court. But in terms of legal strategy, it spoke volumes.
NOTICE OF INSANITY OR MENTIAL INFIRMITY DEFENSE
The Defendant, David Jonathan Freeman, by his attorneys, Worth Law Offices, PC, Wallace C. Worth, Jr., Esquire, and Brian J. Collins, Esquire, do hereby give notice Pursuant to Pennsylvania Rule of Criminal Procedure 305 (C)(1)(b) that he intends to enter a claim of mental infirmity at the time of trial and that he has served notice of the intention on the Office of the District Attorney on July 24, 1995. Defendant gives notice as follows:
A. Defendant intends to enter a claim of mental infirmity at time of trial. Defendant has been diagnosed as mentally ill and treated for his mental illness. Defendant has long-standing personality problems, mental illness, and substance abuse. A pathological relationship existed between Defendant and his parents. On the night of the incident Defendant was intoxicated to the point of being unable to form the requisite specific intent to commit first-degree murder and was overwhelmed to the point of losing his faculties and sensibilities. Defendant started drinking at approximately the age of 6. Further details to be provided in expert reports.
Under ordinary circumstances Collins and Worth’s petition would have been greeted with a chortle of humor; with no other way to explain the crimes, they are going to use an insanity defense. Contrary to the public perception that an insanity defense usually provides a guilty defendant with a way out, it is anything but. In a court of law, insanity is probably the most difficult thing to prove and juries rarely accept it as a defense, especially in a capital case.
But the case of Jeffrey Haworth had sent a long shadow across the DA’s office. Steinberg was worried about lightning striking twice.
Jeffrey Haworth was a twenty-one-year-old Lehigh County man, who had killed his parents by firing repeatedly at them with a shotgun. When he was arrested, police confiscated his notes on the crimes, in which he said that what the Freeman Brothers did to their parents was “cool.”
His attorney decided to use an insanity defense.
Steinberg never believed the jury would buy it and was confident of a conviction. The case brought the DA a lot of publicity. And when the verdict came in that the jury had, indeed, bought Haworth’s assertion and acquitted him, you couldn’t find a more surprised individual or a more disappointed one in Lehigh County than Bob Steinberg.
Not only did Steinberg feel a guilty man had gone free, his political capital waned because he had not gotten a conviction in what appeared to be an open-and-shut case. That made the pressure to get convictions against the Freemans and Birdwell that much more immediate.
Judge Diefenderfer who was scheduled to hear Benny’s case, was stepping down from the bench at the end of 1996. Steinberg wanted his job. A conviction in the next high-profile case, the Freemans and Birdwell, couldn’t hurt.
Now, one of the defendants, David Freeman, had stated that he would use an insanity defense, the same insanity defense that had gotten Jeffrey Haworth off.
If Steinberg was going to renege on the deal, the defense attorneys were going to take him to task publicly.
Worth and Collins, along with public defenders Supplee and Brunnabend, filed papers in court in which they claimed that Steinberg broke his promise not to seek the death penalty, and that the brothers were coerced into giving statements.
“Bryan’s court-appointed lawyer in Michigan was not familiar with Pennsylvania law, and Bryan relied on his advice in giving a confession,” said Bryan’s public defenders, Earl Supplee and Mike Brunnabend. Not to be outdone, David’s lawyers had a little surprise of their own. Worth and Collins filed a brief in which David Freeman claimed that imposing the death penalty on someone his age constituted cruel-and-unusual punishment under both the federal and state constitutions.
“David Freeman consumed alcohol and marijuana and got very little sleep on the trip from Allentown to Michigan,” Collins said in the brief he had prepared. “He was tired, hung over, and partially under the influence of intoxicating beverages and substances, with the result that the defendant’s confession was not the product of a rational intellect and a free will but was rather the result of the defendant’s will being overborne.”
“They can’t get a far trial here in Allentown,” all the lawyers agreed, and they said so in their legal papers. “There’s no way we can get an impartial jury in Lehigh County or the surrounding area because of prejudicial pretrial publicity that has flooded and saturated the area.”
For his part, Steinberg continued the pressure. Since the Freemans and Birdwell did not tell the whole truth in their statements, the death penalty would still apply. If they went to trial, he fully intended to death qualify the jury.
July 27, 1995
Steinberg got back the DNA test results on Benny’s T-shirt. The results were positive.
Ben’s blue T-shirt had been sent for testing to the FBI lab in Washington, D.C. The spots on his shirt were a positive match for Dennis Freeman’s blood.
“The impact stains could not have occurred unless the defendant, Nelson Birdwell III, was in the bedroom of Dennis Freeman while Dennis Freeman was being murdered and in close proximity to the body,” Trooper Joe Vazquez wrote in the affidavit that called for Birdwell’s arrest on murder charges.
As he had promised, Steinberg, pleased that his hunch had proved correct, hauled Benny into court and charged him with three counts of first-degree murder. Since he was apparently present when Dennis was killed, it was a logical assumption he was there for the other two, as well.
David’s second statement, along with Bryan’s, provided more than enough justification in Steinberg’s view to charge him with killing all three victims. Benny had a triple-murder charge lodged against him.
Shackled hand and foot, his hair grown out so you no longer could see the “berserker” tattoo on his forehead, Benny stood before the bench of District Justice Joan Hausman. Judge Hausman read the charges against him.
“How do you plead?”
“The defendant pleads not guilty to all charges,” said Richard Makoul.
“I have to let you know how serious this is. You could face the death penalty,” Judge Hausman warned.
Benny didn’t look too perturbed. The judge ordered him back to Lehigh County Jail without bail.
Downstairs in the lobby of the courthouse, Steinberg held his usual post-court press conference.
“Now he’s in the bedroom,” Steinberg said of Benny. “I’m probably going to file court papers with the Commonwealth’s right to seek the death penalty in this case, as I did with the Freeman brothers.”
Steinberg pointed out that the stains were barely visible to the naked eye, but under infrared photography, they came up clear. “They could easily have been overlooked.”
He commended the state police and the FBI lab for their work on the case and then offered a historical perspective.
“If not for the work of the scientists in advancing the cause of DNA testi
ng in criminal cases, this case probably would not be in this posture today,” Steinberg continued. Then he said publicly what he had only discussed privately.
“Whenever there was trouble in that house, Mr. Birdwell was in the thick of it,” Steinberg said.
Only Brenda’s sisters and Dennis’s sister could have given him this information, since the Birdwell family wasn’t talking, except for the grandfather. The district attorney was convinced that Benny was the real culprit in the case, because he had no real motive to commit murder, yet he had, apparently, done it.
Steinberg concluded by saying that he had decided to prosecute the Freemans and Birdwell separately, because the defendants’ statements might be used against each other.
For his part, Makoul waited until Steinberg had finished his statement and gave one of his own. It was terse and biting.
“Well, I’m not surprised by the new charges. But that blood on my client’s shirt does not prove he killed anyone. The bloodstains could have occurred in many different ways. How about if Ben tried to stop the killings? He could have gotten blood on his shirt then. How come no one is exploring that possibility? The district attorney is proceeding on a circumstantial case, and it’s tenuous at best,” Makoul declared confidently, and then strode off down the courthouse steps and back to his office a block away.
A few doors down from Makoul’s office, David’s lawyer Brian Collins was in his, fielding questions from the press, all of who wanted to interview his client. Collins received interview requests from all media outlets. Like any good attorney, he turned them all down.
“I can’t answer ninety-nine percent of their questions,” Collins said. “I can talk about court procedures, but I can’t talk about anything my client has told me. That’s privileged.”
Privately, Collins and his boss, Wally Worth, were hoping against hope to make a deal with Steinberg, to reduce the charges against David. Second-degree murder was not applicable in this case, because second-degree murder occurs only when someone is killed during the commission of a robbery, which this clearly wasn’t. That left third-degree murder, which is murder committed without premeditation.
