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

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

Yawn, the newspaper’scommunity editor, was covering Harvey Updyke, the man facing trial forpoisoning Auburn’s Toomer’s Corner oaks with a powerful herbicide after the2010 Iron Bowl. Updyke, 63, is an avid University of Alabama fan.

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

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

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

“Do you ever wake upin 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’teven talk to me now.”

Reports of Updyke’sconfession attracted attention from the public and other media outlets. ButUpdyke’s attorney, Everett Wess, said his client denies the conversation withYawn ever occurred.

“There were otherreporters around from ABC, NBC, CBS, FOX … and we think it’s kind of odd that astudent reporter from Auburn University was able to get this story when allthese major media outlets have been here the entire time,” Wess told WLTZ. “Noone saw this reporter getting information from Updyke.”

Judge Jacob Walkergranted a continuance in the case Thursday, delaying the trial in the wake ofthe new publicity. Wess suggested moving the trial to a different venue becauseof the sensitivity to the case in Lee County, but it is unclear whether thejudge will grant that request.

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

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

The document does notspecify 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 likeit was, and we’re behind him 100 percent,” Lee said. “There’s no reason hewould 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 Yawndid not have a recording of the conversation, he has no reason to believe itwas made up.

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

Lee said this is notthe first time Updyke has admitted to the act, noting Updyke’s allegedconfession on The Paul Finebaum Showin January 2011. His attorney later said Updyke did not poison the trees, and hisclient pled not guilty.

Finebaum has also beensubpoenaed to testify, but Walker is allowing him to continue hosting his radioshow, according to local media.

Lee said the newspaperstaff is discussing whether it will attempt to oppose the gag order or thesubpoena.

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

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

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

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

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

By Sydni Dunn, SPLC staff writer