3rd attorney wants off Auburn tree-poisoning case

[February 23, 2011]  AUBURN, Ala. (AP) -- Getting an attorney in Auburn to represent the man charged with poisoning the Toomer's Corner oak trees has proven to be difficult.

Montgomery's Jerry Blevins became the latest attorney seeking to withdraw, citing an "irreconcilable conflict" between himself and defendant Harvey Updyke Jr. Blevins said he had been retained by Updyke, but declined to elaborate on why he no longer wanted to represent him. He said the conflict arose over the weekend and that he mailed the motion to the court on Saturday.

Lee McKee, an official with the circuit clerk's office, said the judge hadn't ruled on Blevins' motion as of late Tuesday afternoon.

Two court-appointed attorneys have already been allowed to withdraw from the case.

Blevins replaced Jerry Hauser, who withdrew because of a potential conflict of interest. His wife, Margaret Fitch-Hauser, is head of Auburn's department of communication and journalism.

Judge Russell Bush had appointed Hauser Friday after Philip Tyler was allowed to withdraw. Tyler, who also had been appointed by the judge, also cited conflicts -- including his former job as an assistant professor at the university.

John Carroll, dean of the Cumberland School of Law at Samford University, said while such recusals are not uncommon, this seems "more than the normal number of folks that have conflicts."

"It's not only whether or not you have an actual conflict of interest, it's also whether you and the client can get along," said Carroll, a former federal judge. "I do not know this gentleman (Updyke) at all or anything about him, but in this particular case, which is obviously going to be a very high-profile case, any lawyer who gets into it wants to make sure he can get in it for the long haul and can represent the client as zealously as the Canons of Judicial Ethics require."

Carroll said the court might have to go outside of Auburn to find an attorney willing to handle this case, which has aroused the passion of many fans.

"This is not a perfect analogy, but let's say it was a very high-profile murder case," he said. "I think attorneys have to be careful, those of whom are in private practice, in making sure it's something they can devote the time and effort they need to devote to it and that they can do it conflict-free.

"In the Auburn community, it might be a very difficult thing to do."

Updyke has been charged with first-degree criminal mischief and is out on bond for allegedly poisoning the trees at the site of decades of Auburn celebrations.

Meanwhile, Auburn has started removing the poisoned soil surrounding the two oak trees at Toomer's Corner on the university's campus. Horticulture professor Gary Keever said the process of putting in fresh soil should be finished Wednesday.

Keever said they're removing soil down to about 18 inches, and samples will be tested to make sure that was deep enough.

He said they might know the fate of the trees by this summer or it could take years.

"They listen to their own drummer," Keever said.

He said symptoms from damage to the trees would likely become visible in April and continue through the summer. That could include leaves yellowing and falling off.

"What will happen soon is that as those trees begin to try to grow, that growing process will pull water and nutrients up from the soil," he said. "In the process, it will pull the herbicide up with it. What was absorbed, we're probably not removing."

Keever said if the recent warm weather continues, that could accelerate the spread of any absorbed herbicide.

He said the workers include volunteers -- Alabama fans, he says -- from American Plant Services in Sylacauga.

"They're doing everything they can to help us, and they're donating the services," he said.

[Associated Press]

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