Again and again in his closing argument this morning, Gary Baker, one of Benjamin Allen’s defense attorneys, described the three friends Allen was with the fateful night of July 12, 2019 as “the Lying Three” as he catalogued an encyclopedia of reasonable doubt about Allen’s guilt.
The jury believed Baker.
After deliberating just under two and a half hours today, the all-white jury of four women and two men found Benjamin Allen not guilty of the murder by gunshot of 17-year-old Elijah Rizvan two years ago on a W-Section street during a drug deal. The case implicated three other young men whose interactions with the Flagler County Sheriff’s Office’s deputies and detectives were churns of lies, deceit and obstruction: Daryin Newsome, 19 at the time, and brothers Nicholas and Nathaniel Varol, 19 and 17 at the time.
Allen, 16 at the time of the murder, had lied, too, if with far less variety: he’d stuck to one of the many implausible stories all four had told, and apparently concocted together to evade responsibility for the murder.
As the clerk read the verdict, Allen sat flanked by his attorneys, Gerald Bettman on his right, and Baker–who, his head in his palm, looked more anguished than Allen–on his left. Five members of Allen’s family were three rows back in the audience, including his mother. Compared to his family, he reacted with reserve, pumping his fist once, getting patted on the back by his attorneys, and quickly, as if expressing a first act of freedom, taking off his jacket. The bailiff who’d walked up to him during the reading of the verdict, ready to manacle him the second the word “guilty” was uttered, stepped back entirely. Allen was no longer even a suspect.
His family broke down in sobs. His mother, who wore a “Jesus is Lord” mask, moments after stepping out of the courtroom said: “God is good. That’s all we’ve got to say. God is good. We just keep on praying.”
Rizvan’s father sat next to a victim advocate on the first bench behind the prosecution table, as he had for much of the trial. He walked out immediately and rapidly after hearing the not guilty verdict, as the clerk was polling jurors individually, the victim advocate following him out. His son had been talking about joining the military days before his murder.
This isn’t TV, where the exonerated defendant gets to walk out of the courtroom with his family. Allen still had to be walked out through the side door used for defendants, back to the Flagler County jail to be processed out: he has spent 656 days and two birthdays either at the jail or in juvenile lock-up since his arrest two days after the murder and his subsequent indictment on a first-degree murder charge, as an adult. The jury didn’t know it, but he would have faced life in prison without parole had he been convicted.
It was Allen whom the jury heard sobbing Thursday, on the fourth day of trial, as the prosecution showed the 56-minute edited video of his interview with detectives, with his parents in the room most of the time. After the interview was over and he was informed that he was to be under arrest, he was put in handcuffs and left alone in the room. He sobbed, and at one point said something to the effect that “they told me not to trust them.” His mother had told him not to go out with the Varol brothers.
The four had gone out to Cue Note, the pool hall, played pool–Allen lost three straight games–then headed to the W Section for the drug deal. It was never made clear who set up the deal. That was one of innumerable elements that lacked proof, though most of the evidence in play pointed to one of the Varol brothers as the set-up man, since the transaction was set up on his phone with a middle man, through SnapChat. The middle man testified and spoke of dealing with both Varols, one of them going back to April. After the murder, Nick Varol erased a Snapchat account and started a new one. But a long list of other elements were also never settled. The one witness to the shooting, Rizvan’s girlfriend, testified that she’d seen two light-skinned Black men step out of the car and rush her boyfriend. Allen is dark-skinned, so is Newsome, who was driving the car.
The Varol brothers are lighter-skinned. She said the shooter wore a hoodie. Allen was never seen with a hoodie in any of the evidence the state presented. His phone was never analyzed to trace any transactions back to him. What hoodie the detectives secured from a search of his home, and analyzed, returned negative for any gunshot residue or blood, as did his clothes. The Varol brothers, on the other hand, deceptively gave detectives the wrong clothes or shoes, and by the time detectives straightened that out, almost two weeks later, it was too late to have the items analyzed. They never were.
They all lied. Allen lied that the three others had merely dropped him off somewhere in the W Section, he couldn’t remember where, so he could meet someone to buy $20 worth of pot from. The “someone” never showed. He called his friends to come pick him up again within a minute or two, from a phone that supposedly had no service if it weren’t next to a hot spot.
The three others had told that story, too. All three of them. But it was the third in a series of lies, made-up stories told detectives in attempts to cover up what had really happened. Allen never knew that “the Lying Three,” as Baker referred to them, had changed their stories many times and dropped the whole thing about dropping off Allen somewhere. And so it went, a maze of lies and subterfuges that the detectives had to sort out, with plenty of lacking evidence to boot, including the gun. It was never recovered, though testimony revealed that Nick had sent the deputies diving through a pond next to Allen’s house for three days, claiming he’d thrown the gun there, even though the Varols lived by the Intracoastal, and no search was ever conducted there.
It may have all came down to what liar to believe most.
“And if it’s not the defendant, ladies and gentlemen,” that shot Rizvan, Assistant State Attorney Jennifer Dunton said in her closing argument, “if it’s not the defendant, then you have to believe that Daryin Newsome, Nick Varol and Nathaniel Varol got together, because one of them did it, and are falsely blaming this defendant. That’s what you have to believe. If it’s not the defendant, they have all come in here to put false blame on the defendant.” The prosecutor was, in fact, summarizing the gist of the defense’s argument.
“Now,” Dunton continued, “does that make any sense with how their stories came out? If that’s what they were trying to do, wouldn’t their story of Ben Allen be more damaging and exactly the same, if you’re going to put false blame on someone, and come up with a story, it’s going to be strong, it’s going to be good, you’re all going to say, all three of you, that I saw Ben do it, this is how he did it, and it would be consistent? That’s not how the evidence came out.”
Dunton and her co-chair, Mark Johnson, tried, if not persistently, to exploit the defense’s use of the many lies the Varols told. Their first lie was that when they went to the pool hall, they went without Allen–as if to distance themselves from the alleged shooter, the prosecutors argued, and make it seem as if they just went there, played pool and went home. Surveillance and traffic camera videos disproved that lie. The jury might have believed the Varols when they said they’d made up the lie for being scared about their fate. But then they told so many other lies, including the one Allen told, that, combined with the demeanor of an Untouchable Nick put on the stand and Nathaniel’s more contemptuous or impatient demeanor, they did not endear themselves to the jury.
And it was their testimony the prosecution wanted the jury to believe, their testimony the prosecution wanted to base Allen’s guilt on. That, Baker exploited effectively. Nate Varol had put the blame on Allen, saying he’d gotten put of the car but stayed by the trunk to get some water, then moved up to Rizvan but never touched him, when he saw things “go south” between Allen and Rizvan. He then testified that when Allen got back in the car, Allen wrapped the gun up in some clothing and put it in his own backpack, though Nick and Newsome testified they never saw the gun.
“Yesterday, detective Fuentes in his testimony,” Baker said, referring to Gabe Fuentes, the lead detective in the investigation, “he admitted that without the most recent story from the Varols, the most important, the testimony of Nate Varol that he saw the shooting, he saw Ben actually shoot, that there is no evidence, zero evidence of Ben Allen’s guilt. None. None. So if you have even a little bit of reasonable doubt with regard to just Nate’s testimony–forget about Nate and all this other stuff. There’s tons of it. But you have to completely believe the last story I guess that Nate told you, with all of its inconsistency, you have to believe him and not anybody else, and must disbelieve what” Rizvan’s girlfriend “told you.”
The jury wasn’t willing to do that. And it didn’t seem to have agonized over its decision. It had gone into the deliberation room at 12:17 p.m. The court arranged for a pizza for lunch, a working lunch. The defense attorneys got nervous as time wore on, but the jury had a decision by 2:43 p.m.
The attorneys said they were looking forward to returning to their families after 10 days away (Baker, who runs the Law office of Gary Baker in Jacksonville, had joined Bettman, also of Jacksonville, for the case just three weeks ago.) Unlike for the prosecution, the courtroom had not been their home ground, though they were complimentary of Circuit Judge Terence Perkins, who presided over the trial. “I think the court was so cordial. Brilliant court, brilliant judge,” Bettman said. He had nothing to gain: the trial was over. But the flattery wasn’t insincere: both sides had conducted themselves with sustained civility and respect despite difficult rulings over the course of the five days, few of which went the defense’s way.
The judge had likewise recognized the attorneys the day before. “The trial counsel has been absolutely civil, courteous, very professional, which translates to being very effective for their client on both sides,” Perkins told the four attorneys during a break. I noticed, and I wanted to say how much I appreciate it. It’s always easier for the trial judge, believe it or not, that have good lawyers trying their case. It’s a lot harder when they’re all over the map. But when I have good, focused trial lawyers involved, A, you know it immediately, B, from the trial judge’s perspective, it’s a lot easier so I commend both sides.”
It was a different way to say, 24 hours before the verdict, that justice was served by those representing it.
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The Geode says
KUDOS! He stuck to his guns and came out clean. It gives me hope that a black man (especially a young one with dreads) can win a jury trial with an all-white jury. He’d better thank his lucky stars that Flagler County had an influx of “diverse mindsets”, otherwise, he would have been cooked…
Nancy Jafari says
It doesn’t matter what color someone’s skin is, if a person lies to police in a murder investigation and 3 other men at the scene lie to police something is amiss. Society should not be saying Hallelujah . A young boy was murdered and these players were involved, what about the victim, doesn’t that child matter? What if the victim was your child ? Would you be celebrating? Despicable
J says
They all should be in jail they were all there when he was killed. An all white kiry found a black man not guilty of murdering a white child. You kept saying all white jury over and over. Now what do you have to say?
Steve says
A Murder, a Not Guilty, and 3 other Suspects who played the Detectives. What would bother Me is that their is a Murderer in your midst and Hes emboldened. Got away with one. It wont be the last. Perfect Crime?
Erobot says
Why did it take two years for the trial. That is totally UNACCEPTABLE. A speedy trial is one of our rights as Americans. The jury found him not guilty, so that’s fine, but an innocent kid spent two years in prison … why the delay?
FlaglerLive says
The judge is on record saying he was “embarrassed” by the delay, largely due to covid, which made holding an in-person trial impossible for almost a year.
PC Anon says
Not only that but also having to struggle with the jury process.
PC Mom says
Thank you Jesus that the jury saw this boy was innocent of this murder…. Now, that being said…. When will the Varol brothers be charged? Oh wait! They won’t!! Kids from a wealthy family who have never been held accountable for anything … EVER!! Never going to happen!! I feel for the victims family and as a mom I would go after the other 3 til my last breath!!
Nancy Jafari says
Benjamin Allen was caught lying in a murder investigation, that is not innocent, that is not ok , he maybe did not pull the trigger but he was an accessory and should have told the truth or held accountable.
Steve says
Well well.. I guess that part about an all white jury is not fair to this young man. Justice has prevailed. If the evidence wasn’t there to convict, then he walks free. That’s how the system is supposed to be.
Ray W. says
Thank you for your comprehensive and insightful coverage of this most serious of criminal trials.
Jimbo99 says
Hard to convict someone without the gun, without the clothes and to have different description of the lighter skinned individuals and they really have no slam dunk of evidence that any of them was the specific shooter. One of them was though. If the GF can’t identify that person specifically it’s a coin toss as to which of those 2 actually pulled the trigger. A gun is that personal a weapon. This was not an overdose situation where the state can connect dots and share manslaughter or murder charges because the drug overdose was related to a transaction. We had the 4 that showed up in the car & 1 GF that had conflicting stories. And the largest pieces of evidence that are necessary to convict were missing. End of the day, the stories, whether they were lies or not, are even clouded by the drugs. Anyone know whether anyone of them were on drugs thru the entire encounter and how that affected perceptions of what any of them could see & hear ? The 4 in the car, the GF, the deceased even ? The jury really had no evidence beyond picking a story to believe. And regardless of the story they picked, all of the stories lacked a gun, and related evidence that are required to prove guilt.
Concerned says
Bullcrap. Eli’s life mattered. This was NOT handled correctly.
Curious says
I am curious why all 4 were not charged, as it would appear the state had enough evidence to put all 4 present at the scene? Could it be proven all 4 participated in a drug deal? If so, Sale and Delivery of a Controlled Substance is a felony. A young man was murdered during the sell, so in the course and scope/commission of a felony. Could they not charge them all with Felony Murder?
I am relieved to see that the justice system worked, as it should. I am relieved to see that the banter about the diversity of the jury was not a factor.
Seems there were too many holes in the states case, shouldn’t have gone to trial in the first place.
Seems to me some sloppy police work on behalf of the Sheriff’s Office, how do you not secure a 16 year olds cell phone for data? 100% they would have found something of value on that phone, phones are the literally diary of old for teens. Who set up the deal? Texts or calls with which perp led to the deal being set? At a minimum the perp who set the deal/was present should have been charged with felony murder? Who’s DNA was on the bag of dope, that the GF hid before cops/EMS arrived? Who’s DNA was on any money that traded hands? If any money was exchanged. Was any forensic evidence found on the victim from the close quarter combat between the perp and victim? Was such forensic work up even completed?
What did the victims phone reveal? Was the suspect vehicle impounded and examined for forensic evidence? Were bank records for the perps examined to see who withdrew money from ATM, again if in fact money exchanged hands? Was surveillance footage from the pool hall pulled to see what clothing all were wearing just before shooting? This would ID the clothing evidence that would be part of a search warrant to the suspects homes? Was a search warrant even executed at those homes? Alot of details not known…
Ray W. says
As for charging all four occupants of the vehicle together at the beginning of the case, I recall a very old Brevard County murder prosecution of a young man who had been wounded during a burglary of a drug dealer’s home. As a senior prosecutor in Volusia County at the time, I knew the lead prosecutor in Brevard County and one of the local defense attorneys involved in the case. Three people rode to the drug dealer’s home. Two got out and broke into the home, with the third serving as the getaway driver. The dealer returned home while the two burglars were in the home. During an exchange of gunfire, the second burglar, a young woman, was also shot; she died laying on the roadside after the other less-wounded burglar jumped in the car first and the getaway driver drove off, leaving her behind. Bullet holes in the car provided evidence that the car had been at the scene. The Brevard drug dealer/victim did not know the two survivors; he couldn’t identify them (they were from Volusia County). The driver exercised his right to remain silent. The surviving burglar talked, implicating the driver. The prosecution charged the driver and the burglar with murder, as codefendants. The driver’s attorney, long dead now, demanded speedy trial, bringing his client’s case to trial first. The Brevard prosecution team was forced to choose between offering a deal to the wounded burglar in exchange for his testimony against the driver or prosecute the burglar and let the driver go; it chose to prosecute the burglar and the driver walked out of court a free man. Here the State elected to prosecute one person via the words of the other three, however weak and conflicting their stories. Whatever comes next? Only the State knows.
Suspicious says
They all admitted to being there and they all admitted it was a drug deal. And two of them admitted they exited the vehicle. And they did not even have enough money on them for what they were buying because they planned on robbing him. The whole thing makes no sense at all. I have seen and studied numerous cases where people are charged for a lot less evidence than what they had. Many mistakes were made on behalf of the State. And who knows why the others were charged with nothing???????
Jane Gentile-Youd says
A young man has a new chance at a clean life for himself and hopefully will never again revert to his destructive choices. Hopefully he is doing some soul searching and will be successful in his future choices. How refreshing to know that our county , which was the last county in Florida to desegregate, has just shown that we are not all about racism.
Our state attorney, on the other hand, continues to destroy lives of many innocent people, in my opinion , one of whom I know personally. which has me convinced that they abuse their power by inexcusably picking and choosing who they ‘go after’ and who they will just give a free pass to… just my opinion. Congratulations to the jury in this case who saw beyond the State Attorney’s ineptness.
To Benjamin Allen : you have the world in your hands – thanks to a very humane decent jury. I am happy for you and your mom.
Mistake says
Congratulations??? What???
For getting away with murder???
He has the world in his hands alright. To you and anyone that was on the jury, go take a look at his public Facebook account. Just days after walking free he’s posting a picture giving the middle finger. Sickening….
Hmmm says
The thing is… a person does NOT have to be the shooter to be convicted of murder. As long as they went knowingly a crime was about to be committed, participated at all in the crime, and ANYBODY including your partner in crime ended up dead, you can be charged. Its on First 48 all the time. Theres even a gentleman from here the was committing a robbery, police responded, and one of the robbers shot and killed himself. The other robber was charged with murder and is in prison right now. All the participants could’ve been charged in this young mans death.
Ray W. says
Would charging all four vehicle occupants as codefendants from the beginning of the case have made their ever-changing and self-serving statements more persuasive? Against which of the four? One? All?
Defendants make three types of statements: A confession pertains to every element of a crime. For example, if a person confesses to taking property by force from a victim, he or she is confessing to robbery. An admission pertains to one or more, but not to every element of a crime. For example, if a person confesses to taking property from a victim, but denies the element of force, while the statement is a confession to theft, it is only an admission to robbery. A statement against interest pertains to none of the elements of a crime, but implicates a person with a possible crime. For example, if someone says they ate at a restaurant at the same time a robbery occurred in the restaurant parking lot, the person’s statement would place them at or near the scene of the robbery at the time it occurred, but it would not provide evidence relevant to any of the elements of robbery.
In the old days, prosecutors spoke of dog cases, of which there are three categories. From the articles, it might appear to most that Mr. Allen’s case was never better than a dog case. While most prosecutions are based on good cases, every prosecutor’s docket contains its share of dog cases. An ordinary dog case might be improved with some diligent and often very difficult work, thereby converting a dog case into a good case. A barking dog case will never be made into anything more than a dog case, no matter how much work anyone puts into it. A barking dog case with fleas is to be dumped, as no amount of work can ever remove the fleas. Prosecutorial nirvana, however fleeting, occurs when a prosecutor is promoted to a new docket. All the old dog cases are left behind and the prosecutor has yet to find the dog cases contained within the new docket. After about a week of looking into the new docket’s files, a first dog case emerges and nirvana begins to fade. After about six weeks, all the new docket’s dog cases have been found and prosecutorial nirvana has fully evaporated as the chimera it always was, but it feels nice while it lasts.
The sooner a prosecutor learns how to distinguish between the three types of dog cases, the sooner he or she is able to exercise control over a docket. Docket control is an important aspect of any prosecutor’s job. In a previous comment, I pointed out that in 1995, the last year in which I had access to the office’s annual statistical summary, I closed over 500 felony cases in court, either by nol pros (rare), plea or trial. In reality, I handled some 700 cases that year at the intake level, but many never saw court for a variety of reasons. Sometimes, the accused just didn’t do it and those cases didn’t make it past the intake phase. That meant that in 1995, using a 40-hour week as the standard, I had less than three hours to devote to my investigation and prosecution of the average felony case. As a division chief, I cautioned all young prosecutors that their job was to make decisions. If they couldn’t make decisions in what might be described as a their never-ending pursuit to develop the perfect case, their docket would soon grow to such a size that they would no longer have the luxury of making decisions, as decisions would eventually begin to be made for them by others. I always handled my dockets in such a way as to free up time for the most difficult cases. Taking a felony worthless check case to trial when a defendant is willing to plea to the charge might take time away from properly developing a difficult capital sexual battery case.
Hmmm says
The fact of the matter is, if you went to commit a robbery and someone was murdered in the process, you dont have to be the shooter to be charged. Period.
Nancy Jafari says
It seems as though you know the system, as the mother of a murdered child who had the exact same thing happen, as this family experienced, I would definitely be grateful to a knowledgeable person such as yourself, to have the guts to stand up for victims and their families. Please Consider using your expertise to help us.
HammockBear says
Why does ” all white jury” have to be part of this article?
FlaglerLive says
Benjamin Allen had voiced his concerns about the fact, and it was discussed during jury selection.
HammockBear says
Thank you.
Steve says
To me it seems the FCSO Detectives for what ever reason picked the wrong Story to try and Tell while the Brothers attempted to pin it on Allen
Christopher Todd Lemke says
I am wondering why Flaglerlive is so obsessed with race………..
Maintaining the narrative at any cost?
FlaglerLive says
Because, aside from the irresponsibility of ignoring an obvious dynamic of the trial, people who still use the word “narrative” in these contexts show a contempt for reality we’d rather not echo, as enough media do.
CB from PC says
The Defendant was found not guilty in the absence of irrefutable proof, presented to a jury, that he was the shooter.
That is how our Legal system works.
The Defendant also made the decision to not pull a gun on LEO, violently resist arrest or engage in a high speed chase, etc.
Enough of the systemic racism BS.
Concerned Resident says
In a few states including Florida, a death that occurs during the commission of a felony, whether intentional or unintentional, is charged as first-degree murder under the felony murder rule. The felony murder doctrine states that a person might be charged with murder even if they didn’t have the intent or weren’t even present at the scene of the crime.
For instance, B and N decide to commit a robbery. They agree that B will commit the crime while N will stand by while D and C will wait in the car and D will be the driver for a quick getaway. During the robbery, things get out of hand and B ends up shooting a child, who dies on the spot. The felony murder doctrine states that both B, N, plus C and the driver (D) will be charged for the murder even though N,C and D say they did not have the intent to rob, but they were present at the scene of the crime.
So why does this not apply to this case?????