It is one of our most cherished rights in American jurisprudence, guaranteed by the Sixth Amendment to the Constitution. When charged with a crime, one has the right to be judged by an impartial jury of one's peers.
In the case against Harvey Updyke, could there be a better one-man jury than Charles Barkley? Barkley is arguably the most famous person to attend Auburn and one of its greatest athletes. Sir Charles was recently asked about Updyke, the 62-year-old former Texas state trooper who has become infamous for allegedly poisoning the iconic trees at Toomer's Corner on Auburn's campus.
Sitting down for a television interview with me and Rick Karle recently, Barkley said of Updyke's alleged crime: "The guy's an idiot ... It's a finable offense. I'm not sure it's a jailable offense for the rest of the guy's life or for 10 or 20 years. Auburn is an amazing place, but we need to get over the tree thing."
Full disclosure: It was on my Birmingham-based radio show that the tree poisoning came to light last January. Updyke, a regular caller, phoned in on the night of Jan. 27, identifying himself as Al from Dadeville.
"Let me tell you what I did," he said. "The weekend after the Iron Bowl, I went to Auburn because I lived 30 miles away, and I poisoned the two Toomer's trees. I put Spike 80DF in 'em. They're not dead yet, but they definitely will die."
Incredulous at what I just heard, and thinking this was a joke, I asked him if it was against the law to poison a tree?
"Do you think I care?" he asked. "I really don't." The call ended with Updyke's trademark "Roll Damn Tide!"
After it was discovered that the Toomer's trees had indeed been poisoned and probably will die, Updyke was arrested three days later and the college football world, especially in Alabama, went into a meltdown of anger. Meanwhile, this mild-mannered but fanatical Alabama fan, couldn't believe how a quiet life had just been snuffed. Updyke is such an Alabama zealot, he named his daughter Crimson Tyde and his son Bear. He wanted to name another child Ally 'Bama, but that was vetoed by his third wife. Even his dog is named Nick after Alabama coach Nick Saban.
The last eight months have been filled with some comedy at Updyke's expense, but mostly with tragedy and enough psychobabble analysis to fill up 10 episodes of Nancy Grace. Everybody has an opinion on Updyke's psyche and what punishment he should receive.
I've discovered a few things during several interviews with Updyke and off-the-air phone calls. He seems to be a pleasant man and just an average retired hard-working law enforcement officer who was determined to get drunk drivers off the road. In his own words, Updyke said he was, "just too full of 'Bama."
Updyke has just lost his fourth lawyer (who unlike the previous court appointed three was a renowned criminal defense lawyer doing the case pro bono). He's triggered enough legal land mines to make Judge Judy scream at the top of her lungs. Updyke's trial is scheduled for Oct. 31, but will likely be postponed. His previous lawyers advised him to plead not guilty by reason of insanity. But when your client publicly confesses on a national radio show, your legal options are fairly limited.
Meanwhile, Updyke, whose father was killed by a drunk driver when he was three, is fighting severe health issues; he was back in the hospital again this week with a heart problem. He claims to have recently lost 40 pounds and for years has dealt with chronic back pain caused by a terrible car accident while in a police chase to help a fellow officer. The accident ended his career in law enforcement.
Whether Updyke is mentally impaired or not, he is now remorseful as he told me recently during another phone call to my radio show.
"I just want to tell the Auburn people that I'm truly sorry for all the damage I've done," he said. "I'm not asking for sympathy. All I'm asking is forgiveness. I want the people that are Christians to understand I've done a lot of good in my life. I've never intentionally hurt anybody ... until this."
During the call, against his lawyer's advice not to ever call the show (the lawyer quit immediately afterward), Updyke's voice was cracking, sounding like a man knocking on heaven's door. I called him later that night at his Louisiana home to see if he was OK, and what he said was chilling to the bone.
"I think I'm going to die soon," he said. "If I go to jail, I'm certainly going to die in there."
You don't need a degree in criminal justice to know the odds are stacked against a former trooper in the state pen unless he's in solitary confinement.
Interestingly, while some Auburn fans are moving slowly toward the road to forgiveness, there is a segment of the Alabama fan base who are embarrassed by Updyke. Many 'Bama fans made donations to try to save the trees and expressed their sympathy to Auburn and its fans.
During the homecoming parade at Alabama last Saturday, a float had a man, presuming to be Updyke, hanging in effigy. It read: "We hang tree killers,'' and "If you poison trees in Auburn we hang you.''
I wish for Updyke's sake he could stop the legal gymnastics and admit the whole story and throw himself on the mercy of the court. But he can't do that without a plea bargain. Updyke has been publicly humiliated as he deserves. Likewise, he should to be fined by the court and punished in some reasonable fashion.
Updyke is not an evil or violent man. His outstanding career in law enforcement is evidence of his contribution to society.
In the end, it can be argued Updyke's biggest crime is really being a rabid college football fan. There are fanatical fans like Updyke supporting every college football program. Not everyone goes to the extreme of poisoning trees and becoming a national punch line. But they do stupid things, frequently under the influence of alcohol, that sometimes hurt themselves or others, and at times, even the program they support.
Updyke allowed his eternal love for Alabama, his fierce hatred of Auburn and his belief that Auburn's victory over Alabama was tainted, to nearly asphyxiate him. Nobody is condoning his behavior in any way, but it cannot be denied that Updyke has already received a life sentence -- with no parole -- of heartbreak.
Let's learn from Harvey Almorn Updyke Jr.'s mistake and allow this to be a teachable moment. I'm not suggesting President Obama invite Updyke and Gene Chizik to The White House for a beer summit. But throwing him in jail will only make some people feel better for a brief moment. I say enough of the attacks and the calls for jail time for vengeance to right the wrong. It is time to get past this human tragedy.
We should listen to a good Auburn man, Sir Charles Barkley, when he says: "Auburn is a place. It's not a tree."