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Site of Auburn poisoning trial still undecided

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BIRMINGHAM, Ala. — A die-hard University of Alabama fan charged with poisoning Auburn University's landmark oak trees at Toomer's Corner still doesn't know where jurors will hear his case, even though his second trial date is just two weeks away.

Harvey Updyke has twice cited extensive publicity and news coverage in asking that his trial be moved outside of Lee County, but a judge has yet to rule. The community is home to Auburn and thousands of Auburn fans, and Updyke's first trial ended abruptly during jury selection in June after the school's student newspaper quoted Updyke as admitting his guilt.

Updyke, who has made other public statements implicating himself in the poisoning, denied the student paper's report. But Circuit Judge Jacob Walker suspended the trial and said he would try again to hold a trial beginning Oct. 1.

Prosecutors haven't filed papers opposing Updyke's bid to move the case to another city — his defense attorney suggested Birmingham as an alternate venue, with Huntsville and Mobile as secondary choices. The judge said he would consider the venue question later, indicating he may attempt a second time to begin jury selection and determine whether an impartial panel can be selected in Lee County.

Updyke, 63, is charged with spiking the majestic oaks with a potent herbicide during Auburn's national championship run in the 2010 football season, which included a 28-27 win over Alabama. The trees are a powerful symbol because Auburn football fans traditionally roll them with toilet paper after a victory.

Updyke has pleaded not guilty by reason of mental disease or defect to charges that include criminal mischief and desecrating a venerable object.

A law professor and former state court judge said it's not unusual for a judge to try to seat a jury before deciding whether to move a trial to another town.

"I've done it myself," said Joseph Colquitt, who presided as a circuit judge and now teaches law at the University of Alabama.

Colquitt said judges deciding whether to move a trial must consider much more than whether a case has generated large amounts of publicity, as Updyke's has.

"The question is whether you have a saturation of sentiment in a community that would prevent a fair trial," Colquitt said.

Updyke's attorney, Everett Wess, contends that's exactly what has happened in Lee County, where the courthouse is less than eight miles from Toomer's Corner. Jurors couldn't avoid publicity about the case in the first trial attempt, he argued in court papers, and it's unlikely they would be able to in a second one, either.

"There were at least ten jurors who heard the student newspaper claims or other media reports concerning this case after the court instructed jurors to avoid the media coverage of this case," he wrote in a motion. "We believe the jurors did their best to avoid media coverage; however, publicity is so widespread it is impossible to impanel a jury in Lee County."

Prosecutors argued in court that Updyke caused publicity about the case on his own by his remarks to the media.

If held as scheduled in Opelika, Updyke's trial will fall between two Auburn home games against Southeastern Conference opponents, Louisiana State University and Arkansas.