Harvey Updyke attorney says state fails to establish Toomer's Corner oaks as 'venerated objects'

AUBURN, Al.
The attorney for Harvey Updyke argued in new court filings last week that prosecutors have failed to demonstrate that the oak trees at Toomer's Corner should be considered a venerated object as defined by Alabama law.

Attorney Everett Wess                Harvey Updyke

Updyke, the 63-year-old man arrested last year for allegedly poisoning the two live oaks in downtown Auburn, was indicted on two two felony counts of criminal mischief, two felony counts of unlawful damage to property from a crop facility and two misdemeanor counts of desecrating a venerated object.
The last two charges, attorney Everett Wess has argued, should be dismissed.
Prosecutors say Updyke, an avid Alabama fan, laced the tree beds with a powerful herbicide. Updyke has admitted to calling the Paul Finebaum show to brag about the poisoning and apologized to Auburn fans, but he has stopped short of making a full confession.
Wess has argued previously that the trees, which are the focal point of post-game celebrations, are not venerated objects because they are "routinely rolled with toilet paper."
He argued in new filings last week that the law makes clear that the crime must be committed publicly with the intent of causing "a breach of the peace."
"If desecrated, said oak trees were not venerated in public," Wess wrote. "Such desecration of trees was not likely to cause a breach of the peace and did not cause a breach of the peace when desecrated."
Wess said prosecutors have failed to show any case law supporting their position that the tree is a venerated object. He said the citation of the Paul Stedman Cullen case in Texas was "non-binding."
Cullen was sentenced to nine years in prison in 1990 after poisoning the 500-year-old Treaty Oak. Prosecutors said that case was part of an occult ritual.
The two oaks at Toomer's Corner are likely about 75 years old.
A special committee recently recommended that Auburn eventually replace the dying oaks with one or two large trees and use a temporary structure to celebrate victories until the new trees have established roots.
Updyke was originally slated to go to trial on the March 5 court docket, but Updyke's attorneys have asked for a delay.