by Fred Rosen
“How did you reply?”
“I said, ‘Well, stop by for a beer.’”
To Frank, they were his brothers in the skinhead movement. He could not deny them his hospitality. But had he known what they had done, it would have been a different story.
“What they did is horrible, awful,” Frank said. “And one thing you never, ever do is kill kin if you’re a skinhead. The skinheads I know would love five minutes with those guys. Those guys set our movement back. What they did has nothing to do with the skinhead movement.”
Frank, who was born and raised in Iron Mountain, Michigan, explained that he is a white separatist. He basically believes in the voluntary separation of the races.
“There are two different types of skins, rural and urban. Rural skinheads, like me, read a lot and watch and wait. I’ll be ready if the government comes after me.”
But rural skins do not believe in violence, he says, as opposed to urban skins, who, because of their close proximity to urban conditions, are more prone to violence and confrontation.
“I believe in working within to change it,” Frank continued, as the windshield wipers pounded back and forth.
At the airport, he waved good-bye and ran into the airport terminal, back to Michigan and armed readiness. Back at the courthouse, Bob Donohue testified.
He was the Michigan attorney who’d brokered the plea arrangement with Steinberg, and he testified as to how it came about and what the plea said.
After his testimony, the judge recessed for the day.
Outside the courtroom, Donohue was angry. He had never seen anything like it. Here he’d brokered a deal to save these boys’ lives, and they were taking the whole thing apart! What the hell was going on?
Right from the outset, both David and Bryan said they wanted to plead. They wanted the deal. They never wanted to go to trial. And yet, when they got back to Pennsylvania, all of a sudden their lawyers were finding ways of maneuvering them out of the deal.
How on earth could you do this deal, public defenders Supplee and Brunnabend wondered? Donohue got furious. What was this, a game to these guys?
“If you don’t think these two kids could lose their lives, you’re sadly mistaken. You don’t believe for a minute someone will impose the death penalty given the political climate. Let me tell you something. You all want the same thing, don’t you? To save their lives! Those boys vigorously delivered on their agreement, and that agreement has to be honored!”
By the next morning, the rain had cleared out, and Donohue was on a plane back to Michigan. The hearing concluded at noon, with Judge Brenner saying he would soon rule on the matters before him.
Back in jail, David and Bryan were worried. If the judge ruled against them, they would face death.
December 7, 1995
Bryan Freeman got up early. He shaved and showered and put on his blue prison jumpsuit. He parted his hair on the side and combed his beard and mustache. His youthful, unlined forehead was speckled with pimples.
A van picked him up and transported him the few blocks to the depths of the Lehigh County Courthouse.
In shackles and chains, he was taken up in a private elevator to Judge Brenner’s third-floor courtroom. He entered the packed courtroom and took his seat next to his attorneys, Earl Supplee and Mike Brunnabend. After the judge came in and court was convened, Bryan marched up to the bench with his lawyers.
“Mr. Freeman, have you twice been hospitalized for mental illness?”
“Yes.”
“Can you read, write, and understand English?”
“Yes.”
“I understand you wish to enter a plea?”
“Yes, Your Honor,” Bryan responded in the hushed, crowded courtroom.
“Did you kill your mother?” Brenner asked.
“Yes, I did,” Bryan answered.
“Do you have any doubts about admitting to murdering your mother and accepting a sentence of life in prison?”
“I have no reservations.”
“Then I sentence you, Bryan Freeman, for the murder of your mother, Brenda Freeman, to life in prison without parole.”
The deal, which had come together in the previous few days, did not require Bryan to testify against David or Benny. Brunnabend told the press after the hearing that he and Supplee had considered negotiating a plea bargain for weeks, but had decided to pursue it after a meeting on Sunday.
“We gave him a chance at life,” Brunnabend said.
Steinberg, meanwhile, defended his decision to take the plea bargain.
“There’s no guarantees that a jury would impose the death penalty, nor that it would be carried out. There are certain punishments worse than death. Sentencing a seventeen-year-old to life behind bars is one of them.”
Upon hearing of the deal, Wally Worth immediately responded that he had discussed possible deals with Steinberg but insisted he would not agree to one in which David pleaded to first-degree murder.
“David’s a follower,” Wally maintained. “His history of emotional problems lessened his culpability in the crimes.”
Richard Makoul, Benny’s attorney, was surprised by the plea arrangement but said it wouldn’t affect Birdwell’s case.
“You only plea bargain when you’re guilty,” Makoul told the press.
After Bryan’s plea, Brian Collins was called down to the jail. His client, David Freeman, wanted to see him.
“I want the same deal as my brother,” he told Collins.
He didn’t want to go through with a trial; he just wanted things over with. His lawyers tried to convince David to hang in there. They felt they could do better for him than murder one and life in prison. David, though, wanted to be together with his brother.
The attorneys explained that no one could guarantee that. That was up to the guy who headed the prison system. David didn’t care; he wanted it over with—now!
December 15, 1995
Brian Collins stood on one side of David, Wally Worth on the other. Judge Brenner went through the same basic set of questions he’d asked Bryan the week before.
Did he understand what he was doing? Yes.
Did he read, write, and speak English? Yes.
“Did you kill your father?” Brenner asked.
“Yes, I did,” David said.
“Why?”
David thought for a moment.
“I don’t know,” he replied.
Sitting in the visitors’ section, Brenda Freeman’s sisters, Linda Solivan and Sandy Lettich, looked at their nephew. They knew.
February 22, 1996
It was early morning. The phone rang. This reporter let it ring a couple of times and then, half awake, picked it up. An automated voice told me there was a collect call from David Freeman. I accepted the charges, and then a low voice with a flat effect came on the line.
“Hello, this is David Freeman. You wrote me a letter.”
“How ya doin’, Dave?”
“Pretty good. I got your letter about interviewing me.”
“Uh huh.”
“It’ll cost you.”
“Oh, really? How much?”
“More than ten thousand.”
He chuckled.
“Well, David, I’m not in the habit of paying for information.”
He chuckled again. David Freeman continued to talk.
“I should be leaving next month.”
“Where you going?”
“The prison at Matahoy.”
“Are you with your brother?”
“Not in here, but he, too.”
“You know, I don’t think you should have pleaded. You had a good shot at murder three.”
“The way I look at it, one’s better than three.”
He offered no further explanation. He would have the rest of his life to figure it out.
April 3, 1996
It was during a phone conversation with Brian Collins that Bob Steinberg’s oversight was discovered.
Through a source,
I had gotten hold of a complete set of interviews that the police had done with all the relevant players. I had assumed that since he had the complete set, so did Collins. After all, Steinberg had to turn everything over to the defense during discovery that could prove the defendant’s guilt or innocence.
As we discussed the jailhouse statements of Todd Reiss, who claimed that Benny had told him that David had not killed his father, the line got ominously silent.
“Brian, you still there?”
A long pause.
“That’s the first time I ever heard about that statement.”
He called his colleague, Wally Worth. Worth hadn’t heard about it, either.
They both went through the discovery packets Steinberg had supplied them with. The statement was not included; their conclusion was that Steinberg had never supplied it.
Wally Worth was furious. “That statement contradicts the prosecution’s case. No matter how cockeyed a jailhouse statement may be, it certainly doesn’t warrant the court allowing a plea bargain of first-degree murder. Third is more like it. We never ever would have let him plead guilty to first-degree murder if we knew that statement existed.”
They might go to Judge Brenner with a copy of the police report and tell him Steinberg had deliberately not included it in the discovery packet because it exculpated David. Brenner had the power to set aside the verdict and order a new trial.
To make matters worse, David and Bryan were cooling their heels in the Lehigh County Jail right down the street. Steinberg had brought them in to testify against Benny. But neither brother wished to comply. Why should they? What was Steinberg offering in return?
“You drag us into court, we’ll plead the Fifth,” the brothers told Steinberg.
Richard Makoul knew that Ben Birdwell had a big chance of being convicted of the first-degree murder of Dennis Freeman. Despite telling the media that Steinberg had a weak circumstantial case, privately he knew better.
There was the blood spatter on Ben’s T-shirt. Prosecution experts would claim that it showed beyond a shadow of a doubt that Ben had been close enough to Dennis to have beaten him with the ax handle.
As to his character, Ben’d be shown at trial by the prosecution’s psychiatrists that he was the next coming of Hannibal Lecter. Given all the pretrial publicity, most of the public already was eager to see Benny killed by lethal injection. Finding a totally impartial jury in Lehigh County was impossible. The only break he got was that the presiding judge, James Diefenderfer, disallowed Steinberg from introducing any evidence of Benny’s participation in the skinhead movement.
“That would be inflammatory,” the judge said.
Despite this ruling, Makoul was still in a dire circumstance. Makoul knew what was really on the line—the boy’s life. Whether he’d done it or not, Makoul was determined to keep him out of the death chamber. Steinberg, he knew, would do everything to get him there.
Makoul’s defense would be this: First, Benny was a dullard, or more precisely, his IQ of 78 proved he was mildly retarded. He was barely capable of comprehending the events transpiring that night. Second, after witnessing the murders, Benny had suffered from an acute anxiety disorder.
Fearful his cousins might kill him, he was so stressed out that he’d accompanied them on the run to Michigan.
“You can’t allow this mind science to permeate this courtroom,” Steinberg told Judge Diefenderfer at a pre-trial hearing. Makoul’s experts believed Benny’s version of events. “Allowing their testimony took away the jury’s right and function of deciding the defendant’s credibility.”
“No, Your Honor,” Makoul shouted in the courtroom. “If Mr. Steinberg has his way, simply the appearance of being at a crime scene will be punishable by a conviction. The court has to allow the defendant’s constitutional right to a fair trial. And that right can only be upheld if you allow the testimony of our experts.”
“If the type of testimony defense counsel seeks to present is admitted, we might as well do away with the jury system and let psychiatrists and psychologists decide credibility,” Steinberg countered. “While much has been written on the role of emotions in patterns of human behavior and in the causation of crimes, at best, a courtroom makes an awkward psychiatrist’s couch.
“Does a psychiatrist know what a defendant was feeling? Did he have an intent to kill when his acts would cause the death of another?”
On Friday, March 15, 1996, the judge ruled that Makoul would be allowed to introduce the reports from shrinks that stated Benny had suffered from acute stress disorder after witnessing the crimes.
Makoul had his defense.
Jury selection in the trial of Nelson Benjamin Birdwell III on the charges of conspiracy to commit first-degree murder and the first-degree murders of Dennis, Brenda, and Erik Freeman began on the morning of March 25, 1996, in the third-floor courtroom of Chief Judge James N. Diefenderfer at 9 A.M.
For the next nine days, Makoul and Steinberg questioned potential jurors one-by-one, as they were brought in from the jury room. Steinberg did as he’d promised: He death qualified the jury. Each and every juror was asked whether, if he or she found Benny guilty, he or she could impose the death penalty, if asked. All the jurors answered “yes.”
For his part, Makoul tried to choose jurors who would not, in his words, be snowed by the mountain of evidence he anticipated Steinberg would throw at them. He looked for compassionate, intelligent people who wouldn’t be swayed by prosecution or media rhetoric.
After they questioned one hundred eighteen potential jurors, twelve were chosen, and four alternates. Steinberg said that only twenty of the one hundred eighteen people questioned said they couldn’t be objective because they had firm opinions. As to pretrial publicity affecting the jury’s verdict:
“People in their ordinary lives don’t pay as much attention to these things, and we tend to overreact to what the public is paying attention to,” Steinberg told the media, at one of his noon-time press conferences.
Makoul was still concerned that given the vast amount of pretrial publicity, Benny wouldn’t get a fair trial in the county. But there was nothing he could do about it. The judge had refused a venue change. The jury had been picked, nine women and three men, ranging in age from their thirties through their forties, representing a cross section of society, including a customer service representative, a housewife, a financial analyst, and a computer analyst.
Altogether, in the coming weeks, they would decide Ben Birdwell’s guilt or innocence, and maybe whether he would live or die.
April 9, 1996
OPENING STATEMENTS
Robert “Bob” Steinberg, representing the people of Lehigh County and the Commonwealth of Pennsylvania, rose to address the jury and a packed courtroom.
“Nelson Benjamin Birdwell III was an active participant. He was no spectator. This is about a gang of three that committed mass murder,” he began.
Steinberg went on to summarize evidence he characterized as massive, but which really consisted of Dennis’s blood on Benny’s T-shirt. Steinberg also pointed out the inconsistencies in Benny’s statements to police as evidence of his guilt.
It was a weak case, built totally on circumstantial evidence, but convictions have been had with less, and at least in front of the jury, Steinberg remained confident that they would see things his way and convict Benny of first-degree murder.
“What was his motive to kill? He never had any problem or conflict with them whatsoever,” Richard “Dick” Makoul began. “I want to know what the prosecution thinks the motive was.”
Of course, the prosecution hadn’t presented one. By law, they didn’t have to in order to gain a conviction.
Makoul, who had formulated his opening argument while standing on a jetty at his seaside home in New Jersey over the weekend, pointed out that his client was borderline mentally retarded. As to the blood on his T-shirt, the blood in Dennis’s room was spattered up to ten feet from the body.
“Anybody wh
o walked into that room for an instant, even just to see what was going on, could have got that much blood on them. Why was there so much blood everywhere else, but a small amount on him?
“He had acute stress trauma brought on by the horror of what he had seen; coupled with a low IQ of 78, that impaired his decision-making,” Makoul maintained, which explained Benny’s decision to run with the brothers.
After the opening statements were concluded, Steinberg put on the stand Officer Pochron, who had found the bodies with his partner, Officer Renninger, who also testified.
After the dry proceedings, Steinberg held his post-court press conference downstairs. When asked if the brothers would testify, Steinberg said, “Probably not. There has been some interference by a family member and in all likelihood, neither brother will take the stand.”
He didn’t bother to explain until the next day that the brothers had been in Allentown for two weeks. As to the family member who’d “interfered,” it was clearly their grandfather, Nelson Birdwell Sr., who held his own impromptu press conference in the courthouse lobby.
Birdwell told the assembled throng that he didn’t feel Benny was guilty. As to Steinberg’s interference charge, Dan Kelly, a reporter for the Reading Eagle, discovered that Birdwell was depositing money into all three grandsons’ prison accounts and that he had established an 800 number they could call whenever they wanted to talk with him.
What was left unsaid was the possible result if the brothers testified against their cousin. Their grandfather, their only contact with the outside world, could cut off all contact with them, and freeze his contribution to their prison bank account, which allowed them to buy small luxuries in prison.
April 10, 1996
Jesse Capece testified about David, Bryan, and Ben’s stopover after the crimes at the Truck World Motor Inn in Ohio, where she worked. Under Steinberg’s patient examination, she explained that it was Bryan who’d actually checked in under Ben’s name. She testified that they had lied about their license plate number.