In perhaps the least surprising development in the state of Alabama ever,
A prosecutor wants to know why a University of Alabama fan who pleaded guilty to poisoning landmark oak trees at Auburn University isn’t making court-ordered restitution payments.
Harvey Updyke was ordered to appear in court Oct. 30 to explain himself, Lee County District Attorney Brandon Hughes told WRBL-TV.
Updyke served more than 70 days in jail in 2013 and was ordered to pay about $800,000 in restitution after admitting to poisoning trees at Toomer’s Corner in Auburn. Fans traditionally rolled the trees with toilet paper after a win, but the original oaks died after being doused with herbicide.
Updyke has paid less than $5,000 and often misses payments, Hughes said.
”We have been keeping an eye on his payments or more specifically, his non-payment, and he has made exactly two payments for a total of $200 in the past year…”
Get The Picture 
Say it ain’t so.
LikeLike
Oldest saying in the book. You can’t get blood out of a turnip.
LikeLiked by 1 person
D.A. Hughes is “keeping an eye on” Updyke’s “non-payment [?]” How does someone watch something that doesn’t exist? Auburn man, obviously.
LikeLike
What can you really do about this? Garnish wages? Does he even work?
LikeLike
In theory the Court can revoke his probation, if his probation has not already expired. I say “in theory” because the US Supreme Court in Jackson v. Georgia (if I recall the cite correctly) ruled that before a court can revoke his probation and jail him the court must determine that he had the ability to pay.
The DA talks in the manner of pro se litigants in magistrate courts who file lawsuits against defendants who could not pay debts then think that just because a court issues a judgment the defendant all of a sudden has assets with which to pay.
LikeLike
You know what’s funny ? I got all the way through law school without any professors talking about blood-from-a-turnip. Obviously, it took me a mere 2 or 3 months to get my first introduction… Remedies was not a required course, but should be.
LikeLiked by 1 person
Bearden v. Georgia (but I’m a defense attorney so of course I know it well)!
Because we are talking about criminal court (I’m not an expert in Alabama law specifically, yada yada yada), courts don’t usually have much trouble making a finding that a defendant had the “ability to pay” if that’s what the court wants to do. Especially not a big booster guy like Updyke. This guy doesn’t exactly qualify for a public defender, right? So he “can” afford to pay restitution. Also, he probably won’t be faulted for not paying back the entire 800K. He’ll be faulted for being woefully behind schedule on whatever payment plan the court set up for him when he pled guilty. (He probably is supposed to pay some relatively modest amount per month that isn’t likely to ever actually add up to $800,000. Again, if Alabama is like the places I am familiar with.)
Bottom line: yes, if a court finds you in contempt or revokes probation for not paying money, and doesn’t even give the notion of inability to pay a hearing and/or doesn’t even bother to make any findings backed by some very simple reasoning when it does so, then that will come right on back on appeal as a violation of due process, debtor’s prison, etc. But if a court hears you out and says “considering all the evidence before me, I find that you have the ability to pay X/month, as you agreed to when you pled guilty in this matter, and that you have chosen not to do so in defiance of this court, etc.”, then good luck winning that appeal.
The real issue is sociological: how motivated is the court to punish this particular defendant? If motivated, he’s toast. If not motivated to do so, then his good ol’ boy lawyer will say some version of “my client regrets and promises to do better, and here’s some documentation of his current medical ailments,” and he’ll live to fight another day.
LikeLike
Bearden! Thanks for that.
Trial judges can find a way to justify a probation revocation.
The good thing for defendants with no money is that a lot have chronic health issues that require medication and treatment. Sheriffs will ususally let them go rather than pay for medical care.
LikeLike
There has to be an Alabama toilet paper mill who could use his skills.
LikeLike
$800,000 for Oak Trees? Damn, I’m in the wrong business.. Sigh..
LikeLike
Our HOA has a $1000 per DAY fine for taking down a tree without permission. Oddly, they have no mention as to what will stop the fine. Put the old tree back up? A nice new sapling? No one knows!
Seems they want about $400K per tree ultimately as well.
LikeLike
No, you are not. That is simply an excessive amount to have assigned for repayment. If AU spent that much money, it just shows how stupid they are. It is about trees folks, no reason Updyke should be paying for all the “pain and consternation” felt by the bed wetting Barn fans. I am glad they gave him jail time for his act of vandalism, but he should not be have to repay for the over reaction by others. You try to save them, then you replace them; anything outside the $5-10K range should be on those who authorized that much work. Judicial system run amok, imo. (Reminds me of the Philly jury in the 1980 who awarded a fortune teller $1MM because an MRI caused her to lose her psychic powers. Jurors r pretty loose with other people’s, or insurance company’s, money. Surprised the judge didn’t intervene/reduce.)
LikeLike
They don’t actually expect him to pay it, do they? Do these people know who their people are?
LikeLike
As they say in Casablanca, “Harvey is a citizen of the world”.
They’ll always have Opelika.
LikeLike
If it’s proven that he doesn’t have the means to pay, he should be ordered to pick up trash on Auburn’s campus on game day.
LikeLiked by 1 person
Wonder if the Harv is still unrepentant about his hateful and stupid act.
I say this sincerely…If he’s repentant, he would publicly apologize for it ( t’was reprehensible regardless of how you feel about Auburn) and offer to do all he could to make amends. Of course we know that ain’t happening.
Instead he is likely still defiant and proud of himself.
The judge lacked imagination in his sentencing.
Updike should have been required to give something that he could actually produce.
I suppose requiring him to clean up Jordan Hare after a game would be considered “cruel and unusual punishment”. If so, isn’t requiring State prisoners to pick up litter on the roadside the same? They get harassed by passing motorists and are seen by people they may know personally.
There needs to be a narrow defining of what is “CaUP” written by the Supreme Court.
If it were up to me, Updike would have to pick up trash on the Auburn campus during football season while wearing an elephant suit.
BTW…What’s happened to our friend, WDE? I miss his take on all things Barner.
LikeLike
Back in college (00-04), a buddy of mine who went to Ole Miss called up David Cutcliffe’s house phone and left a voicemail with all kinds of profanity and wishing for his swift departure. The University/Athletic department swiftly found the source of the call and under threat of expulsion, he had to report to Vaught-Hemingway stadium for the rest of the football season every sunday morning at 7am and scrub the toilets in the stadium. I feel like administrators wouldn’t have the nads for such a well deserved punishment nowadays. I even think Cutcliffe confronted him too and he had to apologize to his face. .
Brilliant punishment.
LikeLike
My thought as well
“If it were up to me, Updike would have to pick up trash on the Auburn campus during football season while wearing an elephant suit.” Or some other equally bad costume.
LikeLike
But if he picked up the trash before the game, the stadium would be empty except for the visiting fans.
LikeLike
You mean the guy who poisoned trees at a public square out of anger over a football game isn’t going to pay you $800k as a way of saying he’s sorry?
I think Harvey and I may be equally surprised that someone actually expected him to follow through on that.
LikeLike