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MONTGOMERY, Ala. >> The Alabama fan accused of poisoning two oak trees that have been staging points for decades of celebrations at rival Auburn is about to go on trial.
Attorneys will begin selecting a jury Tuesday to hear the case against Harvey Updyke Jr., in a courtroom less than 10 miles from Toomer’s Corner and the Auburn campus.
Updyke allegedly poisoned the trees after Auburn beat Alabama during the Tigers’ 2010 national title season. The defendant, a 63-year-old fan of Alabama’s Crimson Tide, has pleaded not guilty to two counts of criminal mischief and two counts of desecrating a venerable object, among other charges.
"A lot of jurors have heard about this case, so our questions are going to be centered around the question: ‘Can you be fair and exclude this other information that you’ve heard and listen to the information or testimony and evidence given within the courtroom and make a decision based on that information?’" defense attorney Everett Wess said.
Updyke, a former Texas state trooper, was at the courthouse Monday for the videotaped deposition of an expert witness, a Mississippi State University chemist who was unavailable later in the week.
District Attorney Robbie Treese did not return a phone call seeking comment.
The trial has been delayed several times for various reasons since Updike’s indictment in May 2011.
He has acknowledged that he called a Birmingham radio show as "Al from Dadeville" — a rural community near Auburn where Updyke lived at the time — saying he poisoned the trees with the powerful herbicide Spike 80DF, according to court documents. He also acknowledged leaving a phone message to an Auburn professor claiming knowledge of the poisoning, the documents said.
Wess has asked that the charges be reduced to misdemeanors because the state of Alabama "has explicitly set the value of an oak tree" at $20, which would be below the level for a felony.
Another Updyke attorney, Louis J. Willie III, said in court filings last week that Updyke might not be able to attend the trial because of "poorly controlled diabetes" and fainting spells.
"He’s just doing the best he can," Wess said. "He wants to get this over with."
School allegiance in an oft-polarized state that is passionate about college football could weigh heavily on the jury selection process.
The defense has submitted a list of 33 questions for potential jurors. Among them: Do they or family members or close friends have ties to Auburn University? Are they or their close friends or relatives familar with Toomer’s Corner? Another question asked if anyone on the panel "will make a decision based upon the defendant being a University of Alabama sports fan."
An appeals court denied Updyke’s request for a change of venue.
John Carroll, dean of Samford’s Cumberland School of Law in Birmingham, cited a recent precedent in the sexual abuse trial of former Penn State assistant football coach Jerry Sandusky in Pennsylvania.
"You’ve got an immediate parallel to the Jerry Sandusky case up at Penn State, where they have tried the case and put a lot of Penn State employees on the jury," said Carroll, a former federal judge. "To me, that’s sort of an equivalent, even though it’s not the same kind of case."
Carroll also said he’s not surprised the Updyke case was headed for trial, calling it a "serious act."
"These trees are very symbolic to Auburn fans," Carroll said. "The nature of the act, I think it’s something that a prosecutor ought to prosecute."
The 130-year-old trees are clearly ailing.
Auburn horticulturist Gary Keever said the tree closest to College Street has lost most of the foliage produced in the spring and that 80 percent of the canopy lacks foliage. He has been subpoenaed for the trial.
"We’re going to continue to monitor the trees," Keever said, "but the situation is not looking good."
