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Harvey Updyke absent from restitution hearing to determine how much he owes Auburn University

Wednesday, September 18, 2013

Harvey Updyke Jr. was absent today from a restitution hearing to determine how much he'll owe Auburn University for poisoning the school's iconic oak tress that once stood on Toomer's Corner in Auburn.

Elmore County Judge Jacob A. Walter III gave Updyke's court-appointed attorneys and district attorneys 30 days to file briefs arguing their cases following testimony from four prosecution witnesses.

The defense called no witnesses.

The DA's office is seeking $1.35 million from Updyke, who pleaded guilty on March 22 to one count of unlawful damage of an animal or crop facility as part of a plea agreement with prosecutors.

That amount was doubled due to Alabama law requiring anyone convicted of animal or crop damage to pay double to amount of damages.

However, his ability to pay restitution remains in question. Defense attorney Anrdrew Stanley told the court Updyke is indigent, with literal assets of $631 and reliant on Medicaid and Social Security disability.

Prosecutors are pursuing restitution under codes related to damage of an agricultural facility, as well as the standard code dealing with restitution. The standard code would allow the court to set a payment schedule commensurate with Updyke's income.

The code for agricultural facilities does not specify that ability. Defense attorneys are expected to argue in brief that the court should only follow the statute relate to damage of a crop facility.

Lee County District Attorney Robbie Treese said they may never make the victims whole, but it is important to secure a judgement should Updyke acquire more substantial funds in the future.

The amount sought, he said, is based on projected costs and actual expenses incurred to date by the university.

"From the testimony, it appears that number could certainly go up," he said.

Prosecutors want Updyke to pay the cost of replacing the trees, removing contaminated soil, expenses paid by the Alabama Department of Agriculture and Industries for analysis on soil samples.

They upped the amount last week to include the new design concept for Toomer's Corner, the cost of removing the trees, labor for management, landscaping and the consultants required.

During testimony, Gary Keever, Auburn professor of horticulture and spokesman for the Toomer's Task Force, addressed the severity of the poisoning.

Initial soil samples, he said, revealed contamination of 0.78 parts per million to 51.7 parts per million. According to DowAgroSciences, he told the court, Spike 80DF or Tebuthiuron, the poising used by Updyke, would be lethal at just 0.1 parts per million.

In lower levels, it would still have a tremendous impact on the health of the trees. Additionally, he said the contamination has affected other plants and trees around the corner, including holly trees that have since been removed, crepe myrtles, a water oak and a willow oak.

Defense attorney Margaret Young Brown argued against the state including as damages the cost of preserving wood salvaged from the oaks so that it can be sold for a scholarship fund and said they definitely want to know how much the university has raised from the sale of wood.

"If their saving the wood so that they can sell it, we don't think it should be part of the restitution," she said.

The university is marketing keepsakes made from the trees with funds going to support scholarships at the school.

She also objected to the introduction of updated cost estimates as evidence, saying they only received the documents Friday and have not had enough time to thoroughly investigate them.

Updyke poisoned the iconic oaks on the Auburn University campus sometime after the 2010 Iron Bowl. The oaks were cut down on April 23. The university plans to redevelop the corner before the start of the 2014 football season.

He was sentenced to 6 months in jail under a 3-year split sentence and is now serving five years of supervised probation since his release from jail on June 10. Updyke had 104 days of jail credit at the time of his sentencing.

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Keywords: Harvey Updyke Jr., restitution hearing ,Auburn University ,iconic oak tress ,Toomer's Corner,Elmore County Al., Lee County Al.,

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