When the jury was seated after day of selection in Benjamin Allen’s murder trial this afternoon, Circuit Judge Terence Perkins asked Allen, 18: “Are you satisfied with our jury?”
“Yeah, I’m satisfied,” Allen said, the only words he’d spoken out loud in the seven hours that had preceded the selection. But Allen, in civilian clothes for the first time since his arrest in July 2019, didn’t tell the judge what he told one of his two attorneys. “He did mention to me: there’s no Blacks on the jury,” Gary Baker, his co-counsel, told the judge. Allen is Black.
There’d been just two Black individuals, both men, in the panel of 25 potential jurors the judge and the lawyers questioned before prosecution and defense went through their elimination process. By then one of the two men had already being excused when he cited his age: anyone 70 or older has the choice to serve or be excused. He is 75 and wanted out. The defense struck out the second–the owner of an investment firm that builds assisted living facilities in the Caribbean.
Normally there’d have been twice as many jurors–50 in all–to pick from. But because of covid rules, the panel was broken up into smaller batches of 25, with no more than two jurors per bench. No audience was allowed, though the trial was broadcast online. The lawyers might have gone on to the second group had they not already negotiated down to their needed eight jurors. Allen had been actively engaged in the choice with the defense, his lawyers running options by him time after time and retreating to a conference room twice to deliberate among themselves before deciding on strikes and keepers. (Each side gets to eliminate a set number of jurors, both sides must agree on jurors chosen.)
“I only get to work with a panel that shows up, and this was the first 25,” Perkins told the attorneys about Allen’s complaint. “They did show up. But I appreciate that.” The judge did not entertain further discussion on that count.
The panel of six jurors and two alternates is made up of six women and two men. Their occupations include–not necessarily in that order–a medical security analyst, a hospital secretary, a receptionist, a senior business analyst for a company in Jacksonville, a retired schoolteacher, a golf course maintenance person, the owner of a cafe, an outdoors sports company and a non-profit, and a shift manager at a grocery store.
Allen was 16 when he was arrested and subsequently indicted for first-degree murder, as an adult, in the shooting death of Elijah Rizvan in front of 7 Westford Lane in Palm Coast the evening of July 12, 2019. Rizvan was shot once below the collarbone with a .380 bullet. According to his arrest report at the time. Allen and three other individuals had driven to Westford for a drug transaction with Rizvan. “He lost his life for a bag of weed and what he was hoping for, $125, pretty sad,” Sheriff Rick Staly said at the time of Allen’s arrest, describing what had turned into a robbery rather than a drug transaction, though why it did so–if, in fact, it had done so–was never explained.
The three other people in the car dropped off Allen at his home immediately after the shooting and went back to Island Estates. It was almost 24 hours later when detectives located and made contact with them, presumably giving them plenty of time to discuss the incident. All three would later identify Allen as the alleged shooter. The defense will be attempting to undermine those witnesses’ credibility. This morning defense lawyers gave an idea of the extent to which they’ll claim some of the witnesses are not believable.
Gerald Bettman, Allen’s attorney, wanted Perkins to listen to long tapes of interviews with the witnesses, long lengths of which were not under oath, and to have the jury hear long lengths of the tapes. “We want to play it all to the jury,” Bettman said. “The jury needs to hear it, because it’s devastating to these witnesses.”
“This is an incredible amount of lying,” Bettman said of one particular witness, who will be testifying. “I’ve never had so much evidence of a state’s witness not telling the truth.”
Perkins called the statements hearsay, though as “inconsistent statements” by a witness, they’re not necessarily excluded by the hearsay rule: that’s what the attorney was pressing for, though he had to convince the judge with a proper rule. Perkins wasn’t convinced. “Mr. Bettman, it’s hearsay,” Perkins told him. “If you find an exception to the hearsay rule. And I can admit it, I will. I’m going to follow the law.”
Allen has previously turned down a plea deal of serving 30 years in prison, reviewable after 25, suggesting that he has greater faith in his attorneys to convince the jury that he was not the shooter beyond a reasonable doubt. But he faces life in prison without parole if found guilty. (The death penalty is not on the table.)
As is usual before trial, both sides filed a few motions, setting the ground rules of the proceedings. After the jury was sworn in and dismissed for the day, the defense argued a motion to limit the number of autopsy pictures of Rizvan as prejudicial and unnecessary. The defense was willing to agree to a few. There’d initially been 92. But Assistant State Attorney Mark Johnson, who is prosecuting the case with Assistant State Attorney Jennifer Dunton, was proposing to show only a few of those to the jury.
None of the pictures were unseemly or violent. But one of the pictures the defense wanted excluded showed Rizvan, deceased, from the neck up. The prosecution wants to show it to show his identity–but of course also to humanize him as the victim. Johnson called it “probative.”
“It’s also prejudicial,” the judge said. “It’s extremely prejudicial. Would you show this to your children? Of course not. It’s horribly prejudicial.”
“We don’t have children on juries,” Johnson noted. The picture was allowed, as was that of a close-up of where the bullet penetrated, and an X-ray showing where it traveled.
Previously, the judge did not deny a motion by the prosecution to prevent the defense from eliciting testimony about Rizvan’s use of gang signs or terminology online, though he was not associated with a gang. The ruling, however, was that any reference to gangs would be addressed if and when it came up at trial. The judge said the defense could pursue the issue within the bounds of evidence. (An earlier version of this article had incorrectly reported the judge’s ruling as an outright denial of the motion, as opposed to a more nuanced decision on that score.)
And the judge denied an attempt by the prosecution to keep out of the trial a record damaging to one of the witnesses’ credibility: the witness as a juvenile had videotaped a friend killing an armadillo by smashing it against a pole. The witness was prosecuted as a juvenile and served out a diversionary program that ended in December 2016. The defense intends to introduce that record into evidence. The defense attempted to suppress a slew of statements by Allen. The judge denied that motion, too.
Opening arguments are set for 9 a.m. Tuesday in Courtroom 401 at the Flagler County courthouse.