Updyke jury selection continues despite gag order; Finebaum, a witness, allowed to continue radio show

June 20, 2012 

OPELIKA, Ala. — Despite a series of obstacles including a pending motion to change venue, a gag order for all participants except the attorneys and a reported confession during the first day of trial, a jury could be seated soon in the trial of Harvey Updyke.

A pool of 51 possible jurors has been identified after two days of voir dire. Of those jurors, 46 have been accepted by both sides.

From there, 24 jurors will be chosen at random, and each side will get six strikes to pare the jury down to the final 12. In addition, nine possible alternates will be broken down into three groups, and each side will get one strike per group, leaving three alternates.

Opening arguments in the trial of Updyke, who is accused of poisoning the historic oaks at Toomer’s Corner, will likely follow soon after.

“I think we’re close,” Updyke’s attorney, Everett Wess, said when asked about opening arguments. “Maybe tomorrow afternoon, after lunch, or on Friday.”

A series of motions still need to be resolved before the case can begin. Wess renewed his motion for change of venue due to Auburn’s location in Lee County, a motion that Walker has ruled can be decided after a jury has been struck.

In addition, Wess expected to file two motions to suppress statements on Wednesday night, including a motion to suppress Updyke’s original interrogation by Auburn police and another to suppress a statement filed by the prosecution Wednesday.

The statement likely stems from an Auburn Plainsman report Tuesday that featured Updyke confessing his guilt in an impromptu interview outside the courtroom during the lunch break.

Both Wess and Lee County District Attorney Robbie Treese will be allowed to question jurors about media reports again today.

Updyke’s confession, which was reported by the Plainsman’s Andrew Yawn, was flatly denied by Wess on Thursday, saying that the discussion between Yawn, Updyke and Updyke’s wife did not happen.

Wess said the report had “poisoned” the jury pool and “permeated” the area. Lee County Circuit Judge responded by saying that the 85 jurors sworn in Tuesday had already been instructed not to read or watch any media reports of the trial.

Yawn was subpoenaed by the prosecution outside the courtroom on Monday.

The Plainsman stood by its story Wednesday.

Yawn told the Ledger-Enquirer on Tuesday night that he approached Updyke to ask the defendant about his health during a lunch break — Updyke appeared to have trouble breathing early Tuesday morning – and Updyke and his wife “opened up.”

Updyke confessed, Yawn said, over a 10-minute conversation while he was taking notes.

Treese, in response to Wess’s claims about the Plainsman report, said that the Auburn police department had already taken a statement from Yawn, and that the “veracity of the report is certainly better than what the defense claims.”

Treese also said that Yawn’s statement included information that had not been reported in the media yet.

“The defense is claiming it’s poisoned the jury pool when they themselves are the source of the poison,” Treese said. In response to the article Lee County Circuit Judge Jacob Walker issued a gag order forbidding anybody other than the lawyers involved in the trial to talk with the media.

Walker’s gag order includes radio host Paul Finebaum, but the popular talk show host will still be able to talk about the case on the radio. Saying that he did not want to interfere with anybody’s job, Walker ruled that Finebaum couldn’t give any interviews to the media only. “I think it would be better if nobody involved discussed the case with the media,” Walker said.

Updyke’s admitted original call to the Finebaum show, in which he identified himself as “Al from Dadeville” and said he had poisoned Toomer’s Oaks following Auburn’s victory over Alabama in the 2010 Iron Bowl, will be played for the jury.

But Treese also said that he wants to put Finebaum on the stand.

“I want to ask him about conversations he’s alleged to have had, both on and off the air, with the defendant,” Treese said.

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