In Benjamin Allen’s murder trial today, it did not seem as if the prosecution was putting on a case so much as putting up targets for the defense to shoot down, again and again.
The only independent witness to the shooting sounded confused, forgetful and contradictory. The defense made the lead detective in the case look gullible for the masses of lies the three young men or boys who were with Allen at the time of the shooting concocted in the 24 hours following the murder.
The go-between who helped set up the deal for the 20 grams of pot that went sour, leading to the shooting death of 17-year-old Elijah Rizvan, was supposed to help link Allen to the deal. Instead, his testimony turned into a refrain of “I don’t recall,” even, incredibly, in the face of video evidence jogging his memory. So he came off looking more contemptuous than believable–his tone and hunched body language didn’t help–underscoring the defense’s daylong theme: there’s no credibility to the prosecution’s witnesses, and therefore none to its case. The defense attorney eased him out of his testimony when he asked him if he’d blocked out the trauma of that day. “Pretty much,” the witness said, his answer even then more half-hearted than the prosecution might’ve wished.
Over the course of the day testimony revealed that Rizvan’s girlfriend, who was hiding during the drug deal, had identified two people who got out of the assailant car as light-skinned, though Allen is unmistakably dark-skinned. Testimony revealed that brothers Nicholas and Nathaniel Varol, 19 and 17 at the time of the shooting, light-skinned and at the scene when the gun went off, had lied compulsively to detectives, making up at least four different stories along the way. At one point one of them, according to the defense, sent detectives looking for the gun for three days in a pond in Tidelands, where Allen lives, though the Varols lived by the Intracoastal. The gun was never found. (The Varols sold their house in December 2020.) Investigators say they were never told to do that, but were following a lead that Allen had left the car with the gun.
Testimony revealed that Allen’s clothes showed no evidence of gunshot residue but that the clothes secured from the two brothers weren’t secured until 13 days after the shooting, because the clothes they’d initially given detectives were not the ones they were wearing at the time of the shooting: they’d been deceptive about that, too. And testimony revealed that it was one of the Varol brothers, not Allen, who’d set up the drug deal. The deal had apparently been set up before they picked up Allen and went to Q Room Billiards to shoot pool before heading over to 7 Westford Lane in Palm Coast to get the pot: that detail remains in contention.
“This is a lot of good elements showing not only reasonable doubt based on testimony and Nicholas and Nathaniel, which I call a house of cards just built on very thin evidence,” Gerald Bettman, Allen’s attorney, said in his opening argument, referring to brothers Nicholas and Nathaniel Varol, 19 and 17 at the time of the shooting. The third person at the scene was Daryin Newsome. Of the prosecution, Bettman said: “They’re going with their stories and not their actual evidence–not the phone records, not the time of when people call. They change their story to try to try to get a conviction, against a young man who’s 16 years of age at the time, listening to the ringleader, Nicholas.”
Allen, 16 at the time of the shooting, was indicted on a first-degree murder charge. He was charged as an adult. He is now 18. He’s been incarcerated since his arrest, first in juvenile lock-up, then at the county jail.He turned down a deal to serve 30 years, reviewable after 25. He faces life in prison without parole if convicted. The all-white jury of six (there are two alternates, also white) must find him guilty beyond a reasonable doubt.
The first day of trial, past the day-long jury selection on Monday, was all doubt–not the inevitable hint of doubt that leaks into almost any case where two or more testify about the same event, but strata upon strata of doubt, gnarled around the witnesses that were supposed to be the prosecution’s surest way to a conviction.
Elijah Rizvan and his girlfriend of one month–they’d been friends much longer–had been lounging that evening. They’d gone up to the nearby Mobil station, smoking pot. Rizvan used the rest room there. They walked back the five minute distance to the house on Westford Lane, where she lives with her grandparents. A Jaguar was parked upfront the night of the shooting.
“We started slow-dancing like dorks, then he told me he didn’t want me to be involved in the drug deal, the marijuana deal,” the woman, now 21, said on the stand. “So he told me to hide behind a car in my driveway.”
She saw two people come out of the silver Ford that had driven past then returned. “They walked up to him in a very aggressive manner by grabbing him really hard, and he stepped back a few feet,” she said. “I heard Elijah say ‘Please don’t,’ and then I heard something that sounded like a firecracker. And they sped off.” She ran to Eli. He told her to take the weed from his pocket and hide it, which she did–behind a telephone pole–then ran back to him and called 911 as she “talked to him, trying to keep him lucid.” He lost consciousness within a minute, died the next: the .380 bullet had entered around his collarbone and pierced his carotid artery.
Of the two people who she said had walked up to Eli, she said “I could barely see them.” One of them wore a hoodie: she remembered that, though the defense was merciless: the first question on cross-examination, which drew an immediate objection from the prosecution, was: “Do you have mental issues?” The objection was sustained, but the rephrased question was allowed, eliciting the woman’s acknowledgement that she had memory issues serious enough that she’d had electroshock therapy.
“Is it possible that the person that shot him and had on the hoodie got into the driver’s door?
“Yes,” she said.
“And you never saw the trunk up, did you?”
“No, the trunk was never opened.”
The trunk detail had been part of the story the trio had told–that one of the Varol brothers had gone back there and rummaged in the trunk for something just as Allen was allegedly wrestling with Eli and shooting him. The open trunk made it impossible for those left in the car to see what was happening behind them until the two who got out, rushed back in and the car sped off.
Assistant State Attorneys Mark Johnson and Jennifer Dunton rarely fail to convict. They’re methodical, they relate to and respect juries without condescending to them. Unlike Bettelman, who could meander and lose his way in verbal contortions, they speak clearly and deliberately. They weave cases like webs that by the time juries have to deliberate, conclusions are often foregone. But their case so far was missing its inescapable threads. There was no DNA evidence, no gunshot residue anywhere, no blood splatter on clothes. The data on Allen’s phone was never examined. The bag of weed he was supposedly after was never tested for DNA. There was no murder weapon, no fingerprints, no video evidence, not even a traffic-camera image of Allen in the car.
There were too many dubious witnesses, including Nicholas at one point telling detectives, after cascades of fictions: “I told the guys we need to come to you and tell you the truth.”
Johnson acknowledged the trio’s tendency to lie. For starters, after dropping off Allen at his home and returning to their own, after the shooting, the trio never called 911. “And again, they made the mistake, as kids do, to try to lie their way out of the situation,” Johnson said in his opening argument. “But what happens is what always happens when you have different people trying to tell a lie. It just doesn’t work. And they told different stories. You will hear about that during this trial. The state is not going to hide it from you. We are not going to wait for the defense to bring it up first.”
But forthrightness from a prosecutor doesn’t right the lies of witnesses.
Johnson reconstructed the moments of the shooting for the jury: Allen and Nathaniel were in the backseat of the car as it drove up to the Westford address. They both got out. Eli walked down to meet the boys. Nate initially went to the trunk, then both approached Eli “and shook hands with him,” Johnson said.
Then Allen told Eli something along the lines of “giving your stuff or giving your shit,” indicating he wanted to rob him. Rizvan resisted. They struggled. Allen pulled out a gun and shot him. Then the four friends sped off. There’s a lot of yelling in the car. One of the four asks Allen if he shot Rizvan. Allen said yes. “I can’t believe I just did that,” Johnson quoted Allen as saying.
“But he had,” Johnson said.
According to the others in the car, anyway. Johnson and Dunton would spend the next six hours trying to prove the assertion to the jury, with little success. The other three in the car who would not be interviewed the first time by detectives, until early the next morning, and at their home, not in interrogation rooms at the sheriff’s office, telling stories that didn’t hold up. Nicholas acted as “the ringleader,” according to the defense. Daryin Newsome was not as cooperative.
“They’re sticking with the mistake,” Bettelman, Allen’s defense attorney, said. “They listened to Nicholas, the 19 year old at the time who impressed them. But he was just the ringleader, telling everybody what to say at every moment.” Allen, he said, “doesn’t want to be here but he can’t know he’s arrested and now he has to defend himself. And you might even see where he started saying to the camera, ‘I’m innocent, I’m innocent until proven guilty. I’m not worried.’ But he still was arrested. He should be worried, because he’s got a lot of people telling stories about him.”
“Ben Allen is not guilty. Not guilty at all. He’s a young person who listened to a person he shouldn’t have listened to.”
Detectives interviewed Allen after the others were interviewed. He was arrested after his interview.
As shaky as a single trial day’s outcome might seem for one side or the other, trials aren’t decided on a single day, and sometimes not even on a single witness. They are studies in turning points, often unexpected or unplanned. The prosecution hasn’t rested, and has a full day’s worth of witnesses lined up for Wednesday, plus the video interview of Allen.
Five years ago, when Dunton successfully prosecuted the case of Anna Pehota, the then-76-year-old Hammock woman who’d shot her husband dead, the prosecution had gone into its final day with its back against the wall, despite the incontrovertible evidence that Pehota had shot and killed her husband. She’d never denied it. But she’d been portrayed–and portrayed herself–as a woman psychologically battered and at the end of her wits with a demeaning husband to whose medical needs she’d tended without fail. Until she snapped, pulled out a gun and shot him after his last insult. But for all the sympathy she’d gained, it all vanished when Dunton showed Pehota’s interview with detectives. Pehota self-destructed, coming across over a two-hour span as cold, uncaring about her husband’s death, or about him. She acknowledged doing something wrong but showed no remorse.
On Wednesday, the prosecution in Allen’s trial is expected to call up the three men the defense referred to as the Three Musketeers. It was a cute but sloppy reference: Athos, Porthos and Aramis were as compulsively honest as Nicholas and Nathaniel Varol and Daryin Newsome have been–according to the same attorney–dissembling. The defense had also portrayed Nicholas as an unflappable ringleader.
On Wednesday, he gets to tell his story to a jury–and face cross-examination to match for the first time.