Lee County judge grants continuance in Harvey Updyke trial based on intense media coverage

jerickson@ledger-enquirer.comJune 21, 2012 

OPELIKA, Ala. — The trial of Harvey Updyke, the man accused of poisoning the two oaks at Toomer’s Corner in Auburn, has been delayed again following a wild three days of jury selection at the Lee County Justice Center.

Lee County Circuit Judge Jacob Walker granted the defense’s motion for a continuance in the trial of Harvey Updyke in the midst of jury selection Thursday, citing concerns that pervasive media coverage had tainted the jury pool.

Walker’s decision raises questions about whether or not Updyke can face a fair and impartial jury in Lee County, the home of Auburn University. “It is hard to find people in this county who are not talking about this case,” Updyke’s attorney, Everett Wess, said.

Wess renewed his motion for change of venue following a morning session of voir dire designed to ask potential jurors if they had heard anything about the case since being sworn in on Tuesday.

Walker ruled that a hearing on Wess’s motion for change of venue will be heard at a later date, although he expressed concern that the case’s extensive media coverage meant it would be difficult to find any jury that knew little about the case.

A juror who works in nationwide phone sales said clients from other states had asked her about Updyke’s reported confession to a student reporter on Tuesday.

““Where do you change the venue to?’ Walker said. “That’s an argument for another day.”

During the trial, Walker banned reporters to have phones in the courtroom, banned cameras in the courtroom and kicked reporters out of the Lee County Justice Center shortly after granting the continuance.

Of the 31 jurors interviewed, 10 indicated that they had heard something about the trial, the most problematic being Updyke’s reported confession to Auburn Plainsman reporter Andrew Yawn on the trial’s first day.

In light of those statements, Walker decided that the report had “been disseminated throughout the community.”

The lengthening of a legal process that has taken more than a year and a half since the alleged crime was committed appears to have taken its toll on Updyke, who has pled not guilty by reason of mental disease or defect to multiple counts of first-degree criminal mischief, desecration of a venerated object and unlawful damage of a crop facility.

Visibly emotional after the judge granted the continuance, Updyke left the Lee County Justice Center flanked by two deputies and did not comment. Wess said his client wanted to continue the trial. Updyke has also lost a lot of weight in recent months, a development Wess attributed to stress.

“Harvey’s shaken,” his attorney, Everett Wess, said. “This has been very stressful for him. He wanted to go through the process, but as his counsel, we advised him that this was the best course of action.”

Updyke’s own reported confession to the Plainsman forced the court’s hand in granting Wess’s motion for a continuance, although Wess denies the report.

Following two days of voir dire, both attorneys were allowed to re-question jurors about whether or not they had heard of the report of Updyke’s confession.

In some cases, potential jurors said they told friends and family that they could not talk about the Updyke trial, but the topic was pressed anyway.

One potential juror said her doctor asked her about the case. Another juror said his brother questioned him about the trial even after he’d declined to talk about it.

“These jurors are doing their best to do right and not talk about the case,” Walker said. “And people interject anyway.”

Lee County District Attorney Robbie Treese objected to the continuance, arguing that the continuance was based on “invited action” — Updyke’s own confession — by the defense.

Prosecutors also argued against the continuance by saying that the jury could be marked with a “presumption of prejudice.” According to prosecutors, all potential jurors who had indicated prejudicial views — i.e., a belief in Updyke’s guilt — had been stricken for cause.

Before jurors were questioned, Wess also submitted two motions to suppress statements that could make an impact whenever the case does go to trial.

One motion was to suppress Updyke’s initial statements given to police shortly after his arrest. The other was to suppress Yawn’s statement, given to police after the story was published Tuesday.

The reporter has also been subpoenaed.

A gag order issued Wednesday remains in effect for all participants in the trial except the attorneys, although a radio personality like Paul Finebaum, who is a witness, will still be allowed to continue broadcasting. The gag order prevents witnesses from granting media interviews.

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