Tree poisoning trial delayed
Judge postpones case amid reports defendant confessed
OPELIKA, Ala.-- A judge on Thursday delayed the trial of an Alabama fan charged with poisoning Auburn's cherished Toomer's Corner oak trees, citing increased media attention stemming from a report this week that the defendant confessed outside the courtroom.
Defense attorneys for Harvey Updyke have also asked the judge to move the trial to a different location, saying that the jury pool so close to Auburn University has been tainted. Judge Jacob Walker said Thursday that he would schedule a hearing to consider the request. He set an Oct. 1 trial date, court filings show.
Prosecutor Robbie Treese objected after the judge's ruling and noted that the issue was "invited by the actions of the defendant." But Walker replied that the report of the confession marked "a very unusual set of circumstances."
Two days earlier, the school's newspaper published a story that said Updyke, a fan of rival Alabama, told a reporter during a break: "Did I do it? Yes."
Defense attorney Everett Wess said Updyke denied making the statement, but word had already spread in a case that has long rankled Auburn fans and further stirred tempers in the heated rivalry that sometimes borders on obsession. Updyke allegedly poisoned the two trees, located less than 10 miles from the courthouse, after the Tigers beat the Alabama Crimson Tide in the 2010 Iron Bowl en route to the national title.
The bitter rivals have accounted for the past three BCS championships.
Walker said 10 of the 31 jurors in the courtroom Thursday indicated they had heard something about the case since initially reporting for jury duty two days earlier, and several said they had read or heard details of the reported confession. Those results prompted Wess to renew his call to delay the trial and move it from Lee County.
But it's unclear if a jury can be seated without anyone who has preconceived notions in a state where few profess neutrality in the Alabama-Auburn rivalry.
"I know this is a case that's covered by a number of media outlets throughout the state of Alabama," Wess said outside the courthouse. "But in this particular case, he has so many jurors who are connected to Auburn in one way or the other. It may be better for the case to be moved outside Auburn."
Many of the jurors had indicated they have ties to Auburn, and nearly half said they at least have close friends or family members who have rolled the now-sickly trees with toilet paper during celebrations, a longstanding tradition for Auburn fans.
A tearful Updyke, who named a daughter Crimson Tyde and a son after legendary Alabama coach Bear Bryant, was escorted from the courtroom by a deputy following the ruling. He has pleaded not guilty by reason of mental disease or defect on charges that include criminal mischief and desecrating a venerable object.
"He wanted to go through with the process as well and get this over with because it's wearing on him," Wess said. "As you can see, he's lost weight from the time that he was charged to [now]."
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Wess declined to say whether the latest delay might make it more likely the two sides can reach a plea agreement.
Walker, who had not ruled on previous venue change requests, noted that prospective jurors were getting asked about the case by family members, customers and even their doctor.
"People continually interject their opinions once they know they're on jury duty," Walker said. He noted that this week's report "has created more news and media attention about this case than there already was."
"Every day we'll be asking jurors, `Anybody talk to you about the case?" he said.
Reporters were told to leave the courthouse minutes after the ruling.
The trial had already been delayed several times for a variety of reasons since Updyke's arrest in March 2011.
Updyke's attorneys had asked the judge to prevent the statement to the student reporter and a statement to police from being used at trial. Court papers said that Updyke acknowledged telling the media that he poisoned the trees, but that he denied actually doing it. The documents said Updyke "never admitted to poisoning the trees" when he spoke to police.