Auburn U. reporter subpoenaed in criminal trial, placed under gag order

Newspaper says defendant confessed

ALABAMA — Andrew Yawn got more than he bargained for when he started work this summer at Auburn University’s The Auburn Plainsman – he was served with a witness subpoena and placed under a gag order Wednesday over a story he broke the previous day.

Yawn, the newspaper’s community editor, was covering Harvey Updyke, the man facing trial for poisoning Auburn’s Toomer’s Corner oaks with a powerful herbicide after the 2010 Iron Bowl. Updyke, 63, is an avid University of Alabama fan.

Yawn approached Updyke on Tuesday following the first round of jury selection for his trial at the Lee County Justice Center in Opelika, Ala., according to The Plainsman.

After Yawn identified himself as a reporter, Updyke began talking about the charges he’s facing, which include criminal mischief and desecrating a venerable object. Among his comments, Updyke allegedly said: “Did I do it? Yes.”

Updyke went on to tell Yawn, according to the reporter, about his guilty conscience.

“Do you ever wake up in the middle of the night and just wish that you hadn’t done something?” Updyke reportedly told Yawn. “It ruined my life. I’ve got a daughter that won’t even talk to me now.”

Reports of Updyke’s confession attracted attention from the public and other media outlets. But Updyke’s attorney, Everett Wess, said his client denies the conversation with Yawn ever occurred.

“There were other reporters around from ABC, NBC, CBS, FOX ... and we think it’s kind of odd that a student reporter from Auburn University was able to get this story when all these major media outlets have been here the entire time,” Wess told WLTZ. “No one saw this reporter getting information from Updyke.”

Judge Jacob Walker granted a continuance in the case Thursday, delaying the trial in the wake of the new publicity. Wess suggested moving the trial to a different venue because of the sensitivity to the case in Lee County, but it is unclear whether the judge will grant that request.

Yawn was subpoenaed to testify at the trial and is now under a gag order covering all witnesses in the case. It was unclear which side called Yawn to testify.

The gag order, issued by Walker on Wednesday, prohibits all potential witnesses from “making any statements to members of the media, or directly discussing their involvement in this case or any current trial proceedings with members of the media.”

The document does not specify when the order will be lifted, and a new trial date has not been set. The Lee County District Attorney’s Office declined to comment Friday.

Plainsman Editor-in-Chief Robert Lee said the newspaper staff stands behind Yawn’s article.

“He reported it like it was, and we’re behind him 100 percent,” Lee said. “There’s no reason he would need to make any of that up. He said everything he got was unprompted, not pried out of him, and it was exactly how it should have been.”

Lee said though Yawn did not have a recording of the conversation, he has no reason to believe it was made up.

“I don’t have any concerns about that,” he said. “Andrew explained the process about how he got the information... Harvey just started talking to him.”

Lee said this is not the first time Updyke has admitted to the act, noting Updyke’s alleged confession on The Paul Finebaum Show in January 2011. His attorney later said Updyke did not poison the trees, and his client pled not guilty.

Finebaum has also been subpoenaed to testify, but Walker is allowing him to continue hosting his radio show, according to local media.

Lee said the newspaper staff is discussing whether it will attempt to oppose the gag order or the subpoena.

Adam Goldstein, attorney advocate for the Student Press Law Center, said the situation poses First Amendment questions.

“In places that recognize the reporter’s privilege, courts are supposed to weigh the interest of the party who is calling the reporter to testify against the First Amendment right of the reporter and the public’s right to know,” Goldstein said.

Though the loss of these historic oaks must be traumatic, Goldstein said it’s not equivalent to the loss of journalistic integrity.

“Is the public better served by a free press or the prosecution of the Round Up guy?” he said.

The newspaper has the option, through legal counsel, of making a motion to quash the witness subpoena or to lift the gag order, Goldstein said.

By Sydni Dunn, SPLC staff writer

Alabama, Auburn University, news, reporter's privilege, The Auburn Plainsman