OPELIKA, Ala. – An Alabama fan accused of poisoning two landmark oak trees at rival Auburn should not have to stand trial near the Auburn campus, especially since the defendant's reported confession was published by the student newspaper, his lawyer argued Wednesday.
His renewed venue change argument came on the second day of selecting jurors, whose numbers had been whittled from 85 to 51. He said the pool is tainted and all prospective jurors have said they were familiar with the case from the media. Nearly half said they or people close to them had participated in the rolling of the Toomer's Corner trees with toilet paper, a longstanding tradition to celebrate Tigers victories.
Harvey Updyke is accused of poisoning the century-old trees after the Tigers beat the Crimson Tide during Auburn's 2010 national title season. The 63-year-old has pleaded not guilty by reason of mental disease or defect on charges that include criminal mischief and desecrating a venerable object.
His attorney, Everett Wess, said before questioning of prospective jurors began Wednesday that Updyke denied telling The Auburn Plainsman that he committed the crime, but the newspaper stands behind its story. Prosecutors also argued they believed the report. Circuit Judge Jacob Walker refused to move the trial, but did impose a gag order that barred everyone in the case except the attorneys to speak to the media.
The Plainsman quoted Updyke as saying during a break in jury selection Tuesday, "Did I do it? Yes."
"We stand behind Andrew Yawn's reporting on the Updyke confession yesterday afternoon 100 percent. The information gathered was not prompted nor off the record," Plainsman editor Robert Lee said in a statement, adding that the paper isn't asserting his guilt or innocence.
The reporter has been subpoenaed in the case.
Computers will randomly narrow the number of jurors left Thursday to 33 including nine potential alternates.
Prosecutors and defense each get to strike six jurors each from the 24 chosen as the regular pool to get it down to the 12 needed. Then each side gets to strike three from the alternates getting the number to three.
Both sides knew picking jurors was going to be a challenge with the trial being held about a 20-minute drive from the Auburn campus. The impassioned rivalry between the Alabama schools is known nationwide and culminates each season in the Iron Bowl for state bragging rights.
Updyke is such a 'Bama fan that his children named Crimson Tyde and Bear (after legendary Alabama coach Paul "Bear" Bryant). The case of the poisoned 130-year-old trees at an entrance to campus has only inflamed the rivalry.
Walker continued with jury selection despite the defense requests for a venue change and continuance.
"I think right now they are not ripe to be ruled upon," Walker said.
The judge noted that he had instructed jurors interviewed Tuesday to avoid media reports on the case.
"The article has permeated the local media and the national media in respect to the trial," Wess told him.
District Attorney Robbie Treese said investigators had questioned the reporter and said he had information that hadn't been previously reported. He said that indicates the report's "veracity is certainly better than what the defense claims." Treese didn't say whether that information was included in the report.
"The defense is claiming it's poisoned the jury pool when they themselves are the source of the poison," Treese said.
It isn't the first time Updyke is alleged to have confessed to the crime. Last year, court documents showed Updyke acknowledged calling Paul Finebaum's syndicated radio show to say he did it with a herbicide.
An attorney for Updyke later said his client told police he didn't poison the trees.
Treese said he expects to call Finebaum as a witness because of conversations both on and off the air.
Walker, meanwhile, said his gag order doesn't prevent the host from talking about the case on his show, just from doing media interviews.
"I don't think that will prevent someone from doing their job," the judge said.