Judge sets June trial for Updyke, pending appeal
By JOHN ZENOR
OPELIKA, Ala. (AP) A judge has tentatively set a June 25 trial date for the man accused of poisoning two iconic oak trees at Auburn's Toomer's Corner, pending an appeal trying to get him removed from hearing the case.
Judge Jacob A. Walker III set the date Wednesday after a brief hearing for Harvey Updyke in Lee County Circuit Court that resumed after attorneys for both sides met privately for about 40 minutes, and with him for another half-hour.
Defense attorney Everett Wess asked the judge to declare the 63-year-old Updyke indigent, waiving a $200 docket fee from the Alabama Court of Criminal Appeals, which is set to consider an appeal seeking Walker's recusal.
Dressed in a white button-down shirt and slacks, Updyke told his attorneys he could come up with the money in "10 or 15 days." Walker gave him 30, but Wess said afterward it would likely be paid by week's end.
Walker earlier ruled that Wess did not present evidence of partiality. Wess cited, among other things, that Walker had attended celebrations of football victories at Toomer's Corner with his children.
"The question is could he be impartial in the eyes of a reasonable person?" Wess said. "That question is out there, and we would like for an independent judicial panel to take a look at that question. We'll be satisfied with whatever that answer is."
The judge has not ruled on a request for a change of venue.
Wess declined to say if he and Treese were trying to work out a plea agreement and avoid trial in a case that began with Updyke's arrest nearly 13 months ago.
"My rule of thumb is we never talk about plea negotiations with the media," he said. "I don't confirm or deny that there are plea negotiations."
Updyke has pleaded not guilty to multiple counts of felony criminal mischief and other charges in connection with the damage of the iconic oaks traditionally rolled by Auburn fans celebrating wins.
Earlier Wednesday, an Auburn University horticulturist said the trees have some dead wood, but no signs of poisoning are evident in the leaves.
Gary Keever said he expects signs of poisoning to show up again during the spring.
He said soil and foliage samples will be taken next week to get a better indication of how much poison is present, but the thin covering of green on the trees was a positive sign. Workers will prune dead wood from the trees, too.
"If we didn't have that new flush of growth on the trees now, they'd essentially be dead," Keever said. "So we're not out of the woods. We're not clear of the herbicide, but it is encouraging that we're seeing as much new growth as we are on the trees and that it's not showing any signs of poisoning yet."
On March 26, a Tennessee company will inject trees with sugar solution to supply some of the energy deprived because the herbicide inhibits photosynthesis. Keever said the company will charge only expenses for the work.
Updated March 14, 2012