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.