by Fred Rosen
The desk clerk from the Michigan Holiday Inn testified, again, that Birdwell checked into his establishment under the name “Mike Burr” and that David and Birdwell paid for the room in one- and five-dollar bills. Suspicious about the way they’d paid, the clerk had called the police, who’d come to the motel, checked out the boys, and made no arrests.
April 11, 1996
The jurors listened to the twenty-minute audiotape of Ben talking to the Michigan cops, in which he’d declared his innocence in the murders of Dennis, Brenda, and Erik and implicated his cousins, David and Bryan.
Eight days after the taped statement, Ben had called a girl he knew in the Allentown area.
“He told me he was hiding in a closet,” she testified.
During his cross, Makoul kept trying to show that that Ben had no reason to kill the Freemans, while David and Bryan did. Steinberg, in turn, tried to show the jury that Birdwell’s statement was designed to throw suspicion off himself.
April 12, 1995
Dr. Barbara Rowley, of the state police crime lab, told the jury of her analyses of the victims’ blood. With charts on easels facing the jury, Dr. Rowley described the genetic markers found in blood. Then she went on to describe the blood on Ben’s T-shirt.
“I counted eight tiny specks of blood, some that were so small they could only be seen under ultraviolet light.”
“And whose blood was it on Ben Birdwell’s T-shirt?” Steinberg asked.
“Dennis Freeman’s.”
Rowley said small drops of blood can’t travel far, bolstering the prosecution’s claim that Birdwell was on one side of Dennis’s bed and David the other, and both were beating him to death.
April 15, 1996
Christine Tomsey, the DNA laboratory manager for the state police in Greensburg, Pennsylvania, and Dr. Harold Deadman, a retired FBI man, bolstered the prosecution’s case by testifying that the pickax handle had a mixture of Brenda and Erik’s blood, and possibly Dennis’s. This fit in neatly with the prosecution’s theory that Ben had wielded it to finish off all three victims. Dennis’s blood was also found on an aluminum baseball bat and a pair of soiled jeans and a T-shirt in the house after the murders.
April 17, 1996
Bob Steinberg put the jailhouse informant, Ivan Smith, on the stand. Smith testified that Birdwell told him about the murders and how he felt about them while both were incarcerated at the Lehigh County Jail. Smith said Birdwell smiled when he talked about the murders and didn’t show sympathy for the victims.
“He told me that the older brother (Bryan) was the mastermind of the whole thing.”
Birdwell told Smith that he knew something like the murders was going to go down because Bryan had once forced his mother against a wall and held a knife to her neck. Smith said Birdwell told him that on their way home from the movies, they were listening to skinhead rock with the message to kill everybody.
“They talked about the murder, and they planned it out, what they were gonna do,” Smith said.
Birdwell told Smith that he saw Brenda get killed. He showed no remorse.
“He said the two brothers did it, not him, and they were not sorry afterward. He said, ‘They deserved it.’”
Makoul scoffed at Smith’s testimony.
“Why would Birdwell confide in you, a stranger? You’re not his friend!”
Smith had no real answer.
Next up was Dr. Isidore Mihalikis, the forensic pathologist, who duplicated most of his testimony from the hearing a year before. Mihalikis testified to the cause of death of the three victims. Mihalikis testified that the attackers had used different weapons, one for each of the three boys, including Ben.
Makoul tried to show that David had used two weapons, freeing Ben of guilt. But Mihalikis didn’t agree with that theory and stuck to his guns.
Three weapons and three assailants. David, Bryan, and Ben
April 18, 1996
Steinberg took the day to tie up loose ends in his case by calling the lead investigators in the case, Trooper Joe Vazquez and Det. Richard Metzler, who each implicated Ben as being part of the murder and its conspiracy. Then the prosecution rested.
“I’m very satisfied with the way all the witnesses testified,” Steinberg told the press at the conclusion of his case. He was standing in front of microphones, with the flags of the state and the nation as his backdrop in the rear of the Lehigh County Courthouse, that had been set up for the press conferences.
“He hasn’t proven it,” Richard Makoul countered a moment later, taking his place in front of the flags. “It’s total confusion,” Makoul added, in characterizing Steinberg’s case.
April 19, 1996
Makoul opened the defense’s case by calling witness after witness to testify that while the Freeman brothers repeatedly threatened their parents prior to the murders, none could ever recall Ben making such threats.
Although Makoul tried to show that Birdwell had no motive to kill the Freemans, some of the defense witnesses didn’t appear to help his case when questioned under Steinberg’s strong cross examination.
“Ben might have been the leader. He may have had influence over David and Bryan,” said Maryann Galton, who had worked with Bryan and Ben at Wendy’s.
Then the student who had had a fight with Bryan was called and said Ben had joined in. Sitting at the defense table, Makoul squirmed. As much as he tried to separate Ben from the brothers, Steinberg kept reeling him back in.
To others, it might have appeared that only Birdwell was on trial, but to Makoul, he knew that the Freeman brothers were seated with him at the empty chairs at the defense table.
April 22, 1996
Makoul called to the stand his experts to get to the heart of the of the defense’s case: The traumatic events of the Freemans’ deaths triggered in Birdwell acute stress disorder and that had forced him to flee with the brothers because he feared what they’d do to him.
In response, Steinberg raked Makoul’s experts’ qualifications over the coals.
April 23, 1995
“Carol Russell,” Makoul called to the stand.
A bleached blonde, Russell was Nelson Birdwell Jr.’s girlfriend. Ben had been driving her car the night of the murders. The police discovered that shortly thereafter, the seat covers had been changed. Police theorized that the reason was that they were bloodied. Steinberg had brought this up during his opening statement. In addition, there had been the matter of the jeans Ben had bought at the Ohio truck stop, which the prosecution alleged were to take the place of the jeans Ben had dumped out of the car.
With Russell’s testimony, Makoul was seeking to counter both contentions.
Russell testified that she recognized the jeans Ben was wearing when he was caught. She did the wash for the family, and she could tell those jeans were not new, but had been washed. She also testified that weeks prior to the murders, she herself had removed the car’s driver’s seat cover because it was dirty. A friend then took the stand and said she was at an Allentown car wash when the cover was removed and thrown away by Russell prior to the murders.
Outside the jury’s presence, various machinations were occurring. Nelson Birdwell Sr. wrote a letter to Bryan that asked him to testify “truthfully” that Ben had not been involved in the murders. It was intercepted by prison authorities in a standard review of inmates’ mail; it never got to Bryan. It wound up on Steinberg’s desk.
The district attorney was furious. The old man was trying to ruin his case, not to mention tampering with a witness. He contemplated charges, then decided against them. The trial had already alienated family members, with Birdwell Sr. and Birdwell Jr. on one side, and Sandy Lettich, Linda Solivan, and Valerie Freeman on the other. (Birdwell never spoke to his daughters; they never spoke to him.)
Sandy and Linda believed in Ben’s guilt and wanted him to go away for life.
There was a short break, and then court reconvened. Birdwell Jr. and Birdwell Sr. sat in the front row in the section reserve
d for family. Next to them was a victim’s aid person, who separated them from Sandy Lettich and Linda Solivan. The Birdwells had not talked to the women since the trial had started.
In the second row of spectator seats, Carol Russell kept leaning on Birdwell Jr., who sat directly in front of her. They exchanged whispered confidences and gum, and then Birdwell sat back to listen, crossing his knees in a manner of utter relaxation. He didn’t look in the least worried that his son was on trial for his life.
“Dr. Neil Hoffman,” Makoul called in the courtroom, after Benny was seated. A thin man in a gray suit and with a thin mustache, Hoffman was a forensic pathologist Makoul had hired to bolster his case. He took the stand.
Hoffman was a blood spatter expert. He had reviewed the reports filed by the prosecution’s blood spatter expert, examined the murder weapons, and gone over the crime-scene shots.
“How did Dennis Freeman die?” Makoul asked.
“The cause of death to Dennis Freeman were multiple blunt impacts to the head and chest,” Hoffman replied. “The most severe injuries were those inflicted by the baseball bat,” (which the prosecution theorized David had been wielding).
Makoul tried to get Hoffman to state categorically that the blood on Ben’s shirt was expirated (exhaled through the nose and mouth), which could account for it going a long way, possibly up to eleven feet, and landing on Ben’s shirt. If Makoul could prove that, then the jury would believe Ben had not been close enough to inflict any blows.
But Hoffman wouldn’t agree. He qualified his answer: “The blood could have been expirated in bursts of blood droplets from the nose and mouth across the room,” he answered. “Or, it could have been spattered from the blows,” which he estimated at about ten.
He also testified that Dr. Barbara Rowley’s blood spatter experiments had a reliability factor of “virtually nil” because scientifically, “the variables of her experiment couldn’t be duplicated.”
Eventually, after all the technical testimony, Makoul got Hoffman to admit that he believed “the blood on the shirt was projected a considerable distance, eight to eleven feet.”
On cross-examination, Steinberg was able to show that Hoffman had come to his conclusions without conducting his own experiments. He shook his testimony so much that at one point, Hoffman couldn’t even recall the name of the defendant!
“This is Nelson Birdwell,” Steinberg intoned, pointing at the defendant. “He’s on trial for three counts of murder.” Sarcasm dripped like honey.
“Never met him?”
“No,” Hoffman answered sheepishly.
After the court broke for lunch, Steinberg ushered Sandy, Linda, and their families, up to his office for a repast. For the Birdwells, it was back to cafeteria food. They didn’t seem to care. Nothing fazed the father and son.
At a noon-time press conference, Dick Makoul said he might put Ben on the stand. Steinberg came to the mike afterward with a big smile on his face. He would relish the prospect of tearing into the defendant.
Off camera, he asked me, “Is Dick really gonna put Ben on?”
Court reconvened, and the judge wanted to know if Makoul was putting Benny on the stand.
“The defense rests,” Dick said, almost inaudibly.
It was time for the rebuttal case.
Sharon Reiss Ikatzer, a registered nurse at the Lehigh County Jail, testified that Ben was intelligent enough to fill out a complete health history.
“I’m fine. I eat well and sleep well,” he stated in writing, implying that he was not of such a low IQ. He also denied he had any medical or mental problems.
School psychologist Barbara Milter testified, “The defendant is not mentally retarded. He had some learning disability.”
Dr. Robert Gordon came to the stand. A clinical psychologist and associate professor at Widener University in Pennsylvania, Gordon said that according to a psychological test the defense shrinks had given Ben, “Birdwell shows no anxiety whatsoever. Clearly, his anxiety level is in the normal range.”
But the test showed something else. “The test supports a diagnosis of psychopathic personality.” Benny was a psychopath, a person who felt nothing, least of all guilt and needed no logical reason to commit murder.
“There are no signs he felt residual anxieties at the time of the crimes.”
Makoul’s defense had just been shot to hell—and then some. He had to do something, and he did, trying to goad Gordon into losing his temper, making a mistake; anything to damage his catastrophic testimony. But the more he needled and probed, the more bemused Gordon got. He just wasn’t going to break.
Finally, Makoul asked, “Doctor, do all of you doctors with degrees disagree about the defendant’s emotional state?”
“I think you have different levels of expertise,” Gordon answered amiably. “And I’m sure all these doctors who testified, while I don’t know them, are well-qualified. I just happen to be well-qualified in the area I’m testifying in.”
April 25, 1995
CLOSING ARGUMENTS
Makoul went first. He kept pressing “reasonable doubt,” saying there was no evidence proving that Ben had killed Brenda, Dennis, or Erik, or helped or conspired with his cousins to do it.
Makoul tried to explain away Ben’s disingenuous statements to police and why he’d chosen to run with the brothers if he really were innocent.
“Ben was in shock by what he witnessed,” Makoul said. “He may not have told the whole story to police because he was afraid that just being in the home during the killings could get him in trouble.”
The jury kept staring at Ben. There was nothing there, nothing behind his eyes. Makoul emphasized the testimony of his experts. Ben had a low IQ, was marginally retarded, and suffered from stress disorder that prevented him from doing anything either to stop the murder or call the cops. He was afraid if he did do something, Bryan or David would kill him.
As to the testimony of the prosecution’s forensic experts, “Was there even a speck of Brenda’s blood on this boy?” Makoul wondered aloud.
He walked over to Ben at the defense table and gently placed his hand on his shoulder. With his cherubic cheeks, Ben looked as innocent as a baby.
When it was Steinberg’s turn, he argued that Birdwell was a willing accomplice to the murders and had indeed actively participated in them. “I can’t tell you what motivates killers,” Steinberg said, knowing full well that a psychopath does not need motivation to kill. “These people were joined. I would suggest to you that they are joined in murder.”
They did everything together, Steinberg suggested. Steinberg argued that after Bryan stabbed Brenda, Birdwell beat her with the an ax handle, ran upstairs, and killed Erik with it. And in between all that, Ben also helped to kill Dennis. Steinberg argued that Ben was not the dullard the defense had tried to portray him as. If anything, he was a cunning young man—cunning enough to help plan a murder, commit it, make a successful escape, and then lie to police, once captured.
“It doesn’t matter what weapons you believe Mr. Birdwell used, nor does it matter how many people you believe he killed. Whether it was one or three, he is still an accomplice, a murderer, and you should find him guilty.”
In the back row, the little man from the Jehovah’s Witnesses Kingdom Hall in Allentown, who had attended the Freeman brothers’ hearings and all of Ben’s trial, scribbled madly in his notebook.
With final arguments concluded, the judge charged the jury and sent them out to deliberate. An hour-and-a-half later, they asked to have some testimony reread to them, including Ben’s statement to police that he’d had nothing to do with the murders.
By 10:30 P.M., they had still not reached a verdict. They turned in for the night.
The next morning, Richard Makoul arrived at his office early, waiting for the verdict. The hours passed.
10 o’clock.
11 o’clock.
In the bullpen, Ben Birdwell waited, still dressed in his suit, calm, waiting to find out his
fate.
12 o’clock.
1 o’clock.
The phone on Makoul’s desk rang. Heart pounding, he picked it up.
“There’s a verdict,” the judge’s clerk said.
Makoul got up, smoothed down his sleeves, straightened his tie, and walked out into the afternoon sunshine for the one-block walk to the courthouse.
In his office, Steinberg, too, got the call. He walked downstairs from his fourth-floor office to Judge Diefenderfer’s third-floor courtroom. Waiting in the front row, he assured Linda and Sandy that Benny was about to be convicted.
“Let’s go, kid, there’s a verdict,” one of the guards said.
He turned Ben around and handcuffed him, while his partner applied the shackles. For the last time, Ben shuffled off to the courtroom. Outside, in the corridor next to the elevator, TV cameras shone light in his eyes. He smiled for the cameras.
EPILOGUE
April 26, 1996
From combined national news sources:
ALLENTOWN, PA.—An eastern Pennsylvania man, Nelson Birdwell III, 18, was found guilty today of first-degree murder for his role in the death of his uncle, Dennis Freeman. The jury immediately recommended life in prison. “No parole,” they wrote in block letters on the verdict slip.
The Allentown jury found him “not guilty” in the murders of Dennis Freeman’s wife, Brenda, and eleven-year-old son, Erik, citing insufficient evidence tying him directly to their deaths.
Ruling that there were no aggravating circumstances to bring the death penalty into play, Judge James Diefenderfer sentenced Birdwell to life in prison. Richard Makoul, Birdwell’s defense lawyer, had admitted his client was present at the time of the murders, but denied he had participated in the killings.
Birdwell’s cousins, David and Bryan Freeman, had previously pleaded guilty, Bryan to his mother’s murder and David to his father’s. No one was convicted of their son Erik’s murder.
AFTERWORD
Richard Makoul was depressed after the verdict. He believed in Ben’s innocence and felt he should have been found “not guilty” because of reasonable doubt. He wondered if he could have done more.
