Monday, February 21, 2011

Does the Auburn Police Department have the wrong guy?

image On Wednesday February 16, shortly after SPORTSbyBROOKS and reported that the NCAA had expanded its ongoing recruiting investigation of Auburn University, the school published a press release reporting that the 130 year old Live Oaks had been poisoned with a powerful herbicide.

On Thursday, February 17, Auburn Police arrested Harvey Almorn Updyke—a self described Alabama fan—and charged him with criminal mischief. Updyke is alleged to be “Al from Dadeville,” the caller on the Paul Finebaum syndicated radio show who claimed responsibility.

Over the weekend  however, news reports emerged that at least one other individual might be involved in the attempted herbicide, such as this one from

Online postings on a popular message board for University of Alabama fans could shed new light on the poisoning of the Toomer’s oak trees.

Postings from January by a user named “FLORIBAMA” on the Tider Insider website claim responsibility for poisoning the trees.

Auburn Police Division Chief Tommy Dawson wouldn’t reveal if investigators had an additional suspect Saturday night.

“We’re still working on this case,” he said. “It would be premature for me to comment on that.”

The APD announced on Thursday that Harvey A. Updyke Jr. had been arrested and charged with first-degree criminal mischief in the case. Updyke had his initial court appearance later Thursday. He was released on $50,000 bond Friday evening.

When the Opelika-Auburn News attempted to contact Updyke on Saturday, a recording said that his phone line was no longer in service.

Most of the posts by “FLORIBAMA” precede Jan. 27, when a radio show caller named “Al from Dadeville,” who police suspect to be Updyke, claimed responsibility on “The Paul Finebaum Show” for poisoning the trees.

Posts by “FLORIBAMA” on a forum at Tider Insider include:

  • “boogers will not have that tree much longer?” on Jan. 4 at 11:45 a.m.
  • “I did something that will really upset the auburn nation thats all I can say now” on Jan. 18 at 4:56 p.m.
  • “No but what I did will make headline news” on Jan. 18 at 5:07 p.m.
  • “both trees” on Jan. 18 at 5:11 p.m.
  • “ARE THE TOOMER TREES GETTING SICK YET?” on Jan. 22 at 1:59 p.m.
  • “let them have fun I killed their toomer tree...... SPIKE80DF” on Jan. 26 at 4:06 p.m.
  • “nothing will save the trees....its too late” on Feb. 3 at 5:22 p.m.

However, “FLORIBAMA” later claims that he or she did not make the previous posts. In a post on Feb. 17 at 7:01 a.m., the user says, “Yes, to the first name of Harvey!! I do follow TI (Tider Insider) but there are times when I am online once a week or longer due to my work of 7 10 or 12 hour days most of the time. Again, I HAVE NEVER POSTED ANYTHING RELATED TO ANY OF THIS!! You can probably figure this out.”

In another post, “FLORIBAMA” says that while he or she did not make the posts, “my friend apparently did and is now in jail in Lee County (Opelika) charged with criminal mischief related to the attempted murder of those $50,000.”

This suggests that, at the very least, Mr. Updyke now has a positive defense against the charges leveled at him by Auburn law enforcement. This hardly constitutes evidence “beyond reasonable doubt” that a criminal conspiracy existed between Barnes and Updyke. It suggests there might have been one, but there is a high standard for proving a conspiracy charge and as damning as these posts seem to be, a first year law student would have the case thrown out quicker than the defendant could post bond on the charge.

It also suggests that AU may have arrested the wrong guy.  To put it gently, the state doesn’t have a lot of evidence against Updyke—no one saw him do it, there’s no published report from a dealer who remembers selling the pesticide to Updyke, and there’s no published report that Auburn or Lee County law enforcement have recovered any of the stuff he allegedly used.

But most the most convincing evidence that Barnes, not Updyke, may be the person of interest are the dates of the posts on TiderInsider. These are as much as three weeks before Updyke allegedly made the fateful call to Paul Finebaum’s show.

Could Updyke be taking the fall for his landlord? Did the Auburn police “close” this case to hastily?

I will say this—unless the prosecution can somehow prove that Updyke is responsible for both the call to the radio show and the TiderInsider posts, Updyke will walk on the criminal mischief charge.

Exit questions: What if, in their zeal to immediately  blunt the negative press related to the NCAA story, AU officials pushed the local Barney Fyffes into making too hasty an arrest? The expected loss of the trees will be tragic enough. But what if the case is so badly botched now that no one is punished?

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