Untold stories of Harvey Updyke's last confessions — and the plot to kill Auburn's iconic oak trees

Bennett Durando
Montgomery Advertiser
  • It has been 12 years since the 2010 Iron Bowl sent rage through Harvey Updyke's veins.
  • Updyke, an Alabama football fan, couldn't stand losing to Auburn or watching the Tigers run to the BCS national title behind Cam Newton.
  • In one of the most notorious revenge acts in sports history, Updyke poisoned Auburn's oak trees at Toomer's Corner.
  • What happened next is part tragedy, part absurdist comedy and part whodunnit like you've never heard it before, from Paul Finebaum and the people who played a role in taking this saga to epic heights.

AUBURN — Stickers disguised the color of the car but made it twice as memorable. Through the office window, elephants and various sizes of the cursive Alabama “A” were visible. They were layered on top of one another in a slapdash arrangement, like a scrapbook collage. Maybe the car was crimson. Maybe it was white. It was clearly a clunker, though. Receptionist Erin Walker imagined the stickers probably made up for missing patches of paint.

Its driver stood within two feet of Walker’s desk. At eye level from her seat, his belly was hanging out of his T-shirt. It was January, but he wore Bermuda shorts. 

“I want to kill out a couple acres’ worth of trees,” he announced. Five or six TruGreen Lawn Care employees occupied the small Opelika office that day. One stood and asked for details.

The customer explained his situation. He and his wife lived on Lake Martin. She was away on vacation. He was shopping for Spike 80DF, an aggressive herbicide that withers trees by being absorbed through the roots, then flowing into the foliage. “She wants a better view of the lake from our house,” he said. “So I’m taking it upon myself to get rid of these things.”

They didn’t have what he needed. TruGreen didn’t sell chemical products; it provided services. A manager explained several better treatment methods and offered to send someone out to the house for a cost estimate. 

He declined, but Walker asked him to leave a name, phone number and address anyway. He signed his name, “Al,” and left.

Harvey Updyke didn’t know when to lie and when to tell the truth. It vexed him for the last nine years of his life. His one-man criminal operation required careful planning for which he didn’t have the patience. In just 10 minutes at the Opelika office where he failed to acquire his weapon, he revealed precise details about his life: His wife was on vacation visiting their daughter. His daughter did just have a baby. She did live in Louisiana. 

But his explanation for the Spike 80DF pursuit was pure invention. And at his next stop, he changed his story to a different lie. 

The truth? Updyke wanted to poison the sacred Toomer’s oak trees on the campus of Auburn University, located about nine miles from the TruGreen Lawn Care office. He wanted revenge after Auburn won the 2010 national championship with a team he believed had been assembled by cheating. “I wanted Auburn people to hate me as much as I hate them,” the Alabama fan told CBS News in 2019, one year before his death following a years-long battle with congestive heart failure and coronary disease.

HOW HE DIED:Alabama fan Harvey Updyke, Auburn tree poisoner, dies at 71

OAK SET ON FIRE:Video: One of Toomer's Oaks set on fire after Auburn's win over LSU

He wanted to commit the most notorious act of football fan villainy of all time. And he wanted the world to know about it.

Maybe that’s why Updyke — a former Texas state trooper — didn’t cover his tracks that day in January 2011. 

More than a decade later, AU is in the process of regrowing the trees at Toomer’s Corner, where generations of Auburn football fans have gathered to celebrate wins by draping toilet paper over the branches −they are approximately 40 feet tall now. When the original 80-year-old oaks were cut down and removed in April 2013, Updyke was in jail. It brought an end to “the biggest story in the state,” says Paul Finebaum, whose call-in radio show provided the sound byte of Updyke’s infamous confession.

It remains possibly the biggest story in the history of the Iron Bowl rivalry as well. That rivalry will be renewed Saturday when Auburn visits Alabama (2:30 p.m., CBS).

But most of the full story is unknown. The Montgomery Advertiser interviewed more than 20 people involved in the ordeal, reviewed dozens of pages of court filings and consulted television and radio interviews from the time to track down the untold saga. It’s part tragedy, part absurdist comedy, part whodunnit and part parable about the perils of sports fandom gone too far.

Auburn fans 'roll' the oak trees at Toomer's Corner after Auburn defeated Texas A&M 28-24 in Auburn, Ala. on Saturday, Nov. 3, 2018.

Herbicidal maniac

The person who sold Updyke the poison does not wish to be named. He understands it was a perfectly legal sale. And that there was no way to know what Updyke planned to do. But he is an Auburn fan with a family of Auburn alumni. He has only told relatives and coworkers about it. About 10 people in total. Being the individual who handed the culprit his weapon extracts a heavy emotional toll.

The timeline between Updyke’s whiff in Opelika and his next stop is unclear. He might have driven the hour to Montgomery that same day.

He called AgriAFC — a retail store that sells agricultural products for crop protection, fertilizer and more — first. Proprietary sales manager Val Ivey didn’t usually answer the phone, but his secretary was out of the office. “I was calling down there to see if you had something that would kill an oak tree,” Ivey remembers Updyke saying. Then before Ivey had time to respond: “I live up on Lake Martin.”

Updyke explained that his house was about 800 square feet but in a neighborhood with more exclusive homes. He wanted an addition, but two oak trees blocked the space where he hoped to build.

Ivey’s first thought was, “Why don’t you just cut them down?”

“Oh no, I can’t do that,” Updyke said. “My wife wouldn't stand for that. She’s kind of an environmentalist.” But she was in Texas. If he poisoned the trees while she was away, they would begin to die when she returned home — but she would never know why. No choice but to chop them down.

“Let me ask you this,” Ivey said. “There are products that will definitely kill those trees. But when it rains and water flows, it’s going to kill everything in sight where it flows. What’s the terrain like?”

Flat as can be, Updyke insisted. 

Ivey directed Updyke to the company’s warehouse down the street. Soon he arrived in his beat-up car. He told the retail worker his new story. He answered the same question about why he couldn’t simply cut down his trees. He traded cash for a four-pound bag of Spike 80DF and signed an illegible name on the purchase log.

“You think this will kill the oak tree?” the salesman remembers Updyke asking before he left.

“You could kill a lot of oak trees with that,” he replied, chuckling.

In the next few days, TruGreen in Opelika consulted territory manager Jake Formby, who was familiar with Lake Martin. He hadn’t been in the office when Al visited. He relied on coworkers’ descriptions.

Formby noticed the house number Al wrote couldn’t be real. The house numbers on Silver Hill Road weren’t even close to that. He tried calling the phone number Al left. It didn’t exist. Formby was stumped. Then he noticed something. The fake phone number started with “259.” That could realistically be a house number on Silver Hill Road. 

Madison Riggins “rolls the oaks” at Toomer’s Corner on the campus of Auburn University in Auburn, Ala., on Saturday, Nov. 12, 2022. Auburn Tigers defeated Texas A&M Aggies 13-10.

Formby went exploring.

“Just trying to get a sale,” he says.

That and he wanted to test whether his investigative sixth sense was correct. As he drove past the “259” house, he spotted the stickers.

“I still swear today, it’s a red car with a bunch of Alabama stickers on it,” he says. “And when the detectives were asking me questions, they said, ‘Are you sure it was a red car?’ And I’m like, ‘Are you kidding me?’ Now I don’t know. It might have been a white car. I can’t remember, but all that I remember is it had a bunch of Alabama stickers all over it. Places where you don’t put stickers.”

Formby parked and put on his door-to-door salesman face. It was about 11 a.m. He knocked. A dog barked. Formby waited.

Finally, Updyke answered. He was shirtless. “I woke him up,” Formby says.

He explained he was there to work up an estimate for Updyke’s ground cover. Updyke didn’t know what he was talking about. Formby reminded Updyke of his visit to the office.

Updyke denied ever going to the office. Formby was caught off guard. He apologized and returned to his car. 

He called the office. Back in Opelika, they described Al’s car. Formby looked to the driveway. “I know I’m at the right place,” he said. So he hung up and knocked on the door again. By this point, he had no idea if he even wanted a sale. He just wanted to know what was going on.

“Are you sure you didn't come to our office and didn’t ask for an estimate?” Formby asked. 

“He didn’t threaten me or nothing,” he remembers. “I’m kind of surprised now that he didn’t give me, like, ‘Get the hell out of here.’ Nothing like that. Just totally denial.”

Auburn's Toomer's Corner

The call

Ivey happened to be driving to Birmingham, listening to "The Paul Finebaum Show" on his car’s radio. His first thought: “This guy knows what he’s talking about. I believe there’s some legitimacy here.” The reality of where Al had bought the poison didn’t cross his mind.

The warehouse salesman was listening live, too. His first thought: “I hope we don’t have Auburn fans thinking, ‘We need to find out who sold this stuff.’”

Police and the state Department of Agriculture would be in the office the next day, tracking down the purchase. In the Opelika TruGreen, employees crowded around a computer and listened to the call.

Everyone knows the call by now. “Arguably the most famous call in sports radio history,” Finebaum says. “Al from Dadeville” told Finebaum that after Auburn’s comeback from a 24-point deficit to win the 2010 Iron Bowl, he saw a Cam Newton jersey on the statue of late Alabama coach Paul W. "Bear" Bryant in Tuscaloosa. His blood boiled, and he poisoned the trees for retribution.

An Auburn student called a campus police officer, who called a campus official, who called Gary Keever, a horticulture professor who would become Auburn’s Lorax: the spokesman for the trees.

Early one morning, DoA inspectors Ray Marler and Jerry Haynes arrived at Toomer’s Corner with sampling tubes. Students walking between classes surrounded them. It was almost a goofy sight. “We didn’t want to make it obvious,” Marler says. “We kept it down low, like we were doing other things.” They took the samples to a pesticide residue lab on Wire Road. There had been a fire in the lab the previous December, limiting AU’s resources to process the samples. The school would have to send it off for testing at a Mississippi State lab.

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The martyr and the cryptic voicemail

Stored in a professor’s laptop on Auburn’s campus, a memento of Updyke remains. At least, Scott McElroy thinks the voice is Updyke’s. It sure sounds like him. But police never gave the once-scorned Auburn professor confirmation. Never closure. Maybe the voice was an actual witness, telling the truth.

“I’m really hesitant talking about this, just because it was so difficult to handle at the time, and I’m glad it’s over,” McElroy acknowledges. “But then again, it’s part of Auburn history. So we don’t need to forget that it happened, or stupid stuff like this could probably happen again.”

He also wants to set the record straight.

Many large-scale controversies involve a martyr. In this story, McElroy was Auburn’s. One decade later, he still keeps a file of the most baffling voicemail that barely anyone has ever heard.

His story goes like this: When Updyke called Finebaum, McElroy was in Puerto Rico for a weed science conference. He teaches principles of weed science, an AU undergraduate class where students learn 40 to 50 types of herbicides and how they’re used; how to identify more than 100 weed species; the history of herbicides and the impact of weed management on human development dating back to prehistoric times.

“Weeds are mentioned in the Bible, for goodness sakes, and parables,” McElroy says. “They’ve been around since humans have been around.”

He got his undergraduate and master’s degrees from Auburn. He was on the University of Tennessee faculty for four years before returning to AU, where he also researches herbicide resistance. Few people know herbicides like McElroy.

Somebody told him about Updyke’s radio call the morning after the show. A man named Al had poisoned the oak trees. He did it with Spike tebuthiuron. And crucially: He told Finebaum he did it after the Iron Bowl.

It was Jan. 28. McElroy’s mind raced. Tebuthiuron is a photosynthesis-2-inhibiting herbicide. If this was true, the obstruction of PS2 would be evident by now, after almost two months. 

McElroy had a research blog at the time. When he returned to Auburn, he grabbed a ladder and his fluorometer and visited the trees. He didn’t tell anyone. This was a simple test that didn’t require much fuss. He climbed into the canopy of the trees and pointed the fluorometer at a leaf. “It flashes a light then reabsorbs the emitted light and gives you a reading,” he says. “From that class of herbicide, you can instantly tell if photosynthesis is being inhibited.”

It wasn’t. McElroy scoffed. He checked other locations. Same result.

So he blogged about it: The Finebaum caller was a liar. The trees were safe.

McElroy gave several interviews about his findings. Finebaum’s show picked up his blog as Auburn sent soil samples to Mississippi State for more thorough, formal testing. The buzz died down.

Mississippi State’s lab handles countless samples of potential chemical misuse. Sometimes the cases go to court after testing. The lab’s biggest case involved the Gulf of Mexico oil spill in 2010. Usually, though, it handles relatively minor dust-ups: A farmer sprays pesticides, and the wind blows it off the property and onto a neighbor’s crops.

This was different. “Normally an inspector might drop the samples off in evidence bags,” says Gale Hagood, who is retired from the lab now. “This was a significant misuse. State car. Bit more security involved.” Multiple unmarked black SUVs pulled up as though they were carrying the president. The evidence bags held soil, bark and leaves. 

Chemist Cindy Foster analyzed the samples. The high profile made it a priority case, so testing took less than a week. Foster relayed her results to Hagood for review. Hagood was responsible for communicating the test’s verdict back to Alabama’s Department of Agriculture. She was one of the first to see the truth:

“Those trees were never coming back.”

It was two weeks after his semi-viral blog that McElroy got the call. He was in Orlando for another conference. AU hadn’t announced it yet, but the tests were back: fatally high levels of tebuthiuron in the soil.

“Immediately, I had egg on my face,” McElroy says. 

He rushed back to Auburn. The coming weeks would be miserable. Auburn reprimanded him for going over university leadership’s head. A team of experts was selected to handle PR. McElroy was not included. He wasn’t credible anymore.

Message boards slaughtered him. McElroy couldn’t look away. He had never been in a public spotlight. He read conspiracies that the university itself had poisoned the trees to distract from Heisman-winning quarterback Cam Newton’s 2010 eligibility scandal. The same online dwellers who invented that idea crucified McElroy; in interviews, he had referred to tebuthiuron as a pesticide. “He doesn’t even know what a pesticide is,” McElroy remembers reading. “A pesticide kills pests. This is an herbicide because it kills weeds.” 

The professor fumed. The U.S. Environmental Protection Agency defines a pesticide as any chemical that kills insects, diseases, weeds, anything. “It’s an umbrella term,” he insists. “They had no idea what they’re talking about, yet they’re calling me an idiot.”

Crews remove weakened branches from the poisoned oaks at Toomer's Corner.

Meanwhile, Auburn’s team, led by Keever, started the long process of setting up a grid system across Samford Lawn to test the depth of poison penetration at different areas. It was an arduous mapping process. Keever deflected frightened parents, who were concerned the chemicals had seeped into the water supply. That theory even earned brief attention from the Department of Homeland Security regarding whether Updyke’s crime constituted a terrorist attack. Auburn brought in an engineering firm to validate that the water was safe.

The whole time, McElroy agonized over one question: How was I wrong? Eventually, he grew to understand what had happened: Updyke didn’t poison the trees after the Iron Bowl, like he said on the radio. He did it after Auburn won the national championship, more than a month later. When McElroy performed his bootleg test, only a week had passed. It takes time for Spike 80DF to move through a tree’s vascular system — its bloodstream of sorts — to the leaves.

“I was assuming that a person who would poison trees just to upset a rival sports opponent would be honest about when he did that,” McElroy says. “Which was dumb on my part. I met him at his word. Why would you take somebody at their word who would commit a crime?”

But the cryptic voicemail, which he played for the Montgomery Advertiser, is the last remaining mystery. McElroy will never know for sure who it was. But when the professor rushed to his office the morning after his incorrect blog was exposed, he found a 17-second recording on his work phone.

“I just want to tell you that you’re full of (expletive). That I know the guy that poisoned the trees. I saw him do it on the webcam. You can take your fancy little meter or whatever it is and tell all your Auburn buddies anything you want to. Your (expletive) trees aren’t poisoned? I hope they rot and die in hell, you cheating (expletive).”

Harvey Updyke, an Alabama fan, pleaded guilty to a felony charge of damaging animal or crop facilities after poisoning the trees at Toomer's Corner in 2010 that Aubun fans roll with toilet paper after football wins. Two new trees were planted in 2015.

‘Why have you been seeing my wife?’ The search for Al from Dadeville 

Jay Sewell was in the right place at the right time, or maybe the wrong place at the wrong time. “I jokingly say it was bad luck,” he says now. He was 27 years old, just five years out of school. He had missed his graduation from AU because he was at the police academy, and he drove a patrol car until his 2008 promotion to Auburn Police Department detective. There were the detectives who kicked in doors, and then there was Sewell. He was an ambitious, analytical investigator. The brains, not the brawn. His sergeant, Scott Mingus, called him Jimmy Neutron.

Sewell was in the office Jan. 27 when a concerned citizen called about Updyke’s call. “I was there and got the tap on the shoulder, I guess,” he says.

Tommy Dawson was the opposite in some ways. He was police chief at the time, a confident 26-year APD veteran with a big personality that made him an effective interviewer. He says he’s the sixth generation of his family to graduate from Auburn. He grew up in Lee County and attended Beauregard High School.

Sewell ran with the case, even though he felt skeptical about the call. First he called the Alabama Department of Agriculture to learn more about the herbicide. He learned power utility companies sometimes pour Spike 80DF on power lines to prevent trees from growing. Its anti-arbor purpose is specific.

While he waited like everyone else for the test results from Mississippi State, Sewell contacted Finebaum’s producers and acquired a recording of the call. He used a law enforcement database to search for driver’s licenses with a first, middle or last name similar to “Al” in Tallapoosa County and surrounding areas. “It was a needle in a haystack at that point,” he says. Albert, Alex, Alan.

Updyke’s middle name was Almore.

Sewell used phone records to form a list of numbers for the potential Al candidates. In stepped Dawson with a unique method: He says he cold-called the numbers, “trying to strike up a conversation with the folks on the phone to see if we could recognize the voice.”

Dawson needed a tactic to keep them talking long enough. “Were you down at Walmart today?” he remembers asking someone, feigning anger in his voice. “Were you the one who bumped into me at the store?”

It only took the chief a couple of tries to strike gold. Here’s how Dawson remembers the call:

“Is this Harvey Updyke?”


“Well, why have you been seeing my wife?”

“I ain’t seeing your wife!”

Accusations of adultery worked like a charm. 

“He went on and on about ‘I don’t know who you are,’” Dawson says. “We had to get him to talk about something. … We were relatively certain after talking to him in that conversation that he was the guy. Listening to the voice. We didn’t have to get a voice expert.”

Still, it was only a lead. Nothing concrete. Sewell was contacting telephone providers, trying to access phone records of who called into Finebaum’s show that day. “Again, needle in a haystack,” he says. “It’s a tedious process. Being a call-in radio show, there are dozens of people calling in at any one time. So we would get these numbers, and then you have to get a subpoena. And send it off and request account information. So that’s taking weeks.”

They didn’t have weeks when the soil tests returned positive. As Auburn held a press conference Feb. 16, citizens were encouraged to call APD if they knew anything. 

Administrative assistant Drucilla Cooper was working the phones the next day when a man called, asking to speak with a detective. He knew who poisoned the trees. She put him on hold and quickly jotted down the phone number in case he hung up. Then she tried to connect the call to a detective. All the lines were busy.

“I can’t get in touch with anybody, but if you leave me your name and number, it’s confidential and I’ll be glad to ask a detective to call you back,” Cooper told the caller. She remembers feeling suspicious about his reply: “Well, I don’t want to give my name.” 

Cooper was experienced. She was cool under pressure. She kept him on the line with small talk for five minutes. Then, “let me try again.” Still, no detectives were available. Cooper took the caller off hold, wondering if she could casually catch him off guard. “I’m sorry, what was your name again?”

She’ll never forget the way he answered, like James Bond.

“Updyke. Harvey Updyke.”

She scribbled the name, hung up and ran her note to the detectives. They were able to convince Updyke to drive to the office that day for an interview, at which point Updyke admitted to making the call but not to poisoning the trees. Sewell couldn’t believe his luck; he guessed it would have taken potentially months to track down the suspect if he hadn’t essentially turned himself in. Sewell contacted the Tallapoosa County Sheriff’s Office and started putting together a search warrant for the house where Updyke was living on Lake Martin. It was a friend’s place.

Dawson and Lorenza Dorsey questioned him. Dorsey is one of the most celebrated public servants in Auburn to this day; he’s retired but still works part-time for APD, and he was not permitted by the current police chief to comment for this story. Dawson doesn’t remember much — because he says he didn’t last long in the interrogation room.

Dawson claims Updyke came in blithering about Alabama football and using language that offended Dawson.

“I can put up with a lot of things,” Dawson says. “I’d been a police officer for 26 years, and I can take most cursing. But if you’re going to take the Lord’s name in vain to the degree he was taking the Lord’s name in vain, I don’t do well with that. So I said, ‘Harvey, before the Lord strikes you dead and I get killed because I’m close to you, I’m going to leave you in this room by yourself.’”

That left Dorsey to deal with Updyke. The chief trusted Dorsey more than he trusted himself anyway. Dorsey had a way of relating to anyone. Sewell obtained the warrant, and a group of investigators drove to Dadeville with Updyke riding in a patrol car. Dawson stayed behind.

It was dusk by the time everyone arrived at the house. The Auburn PD entourage was accompanied by Bill Hough and David McMichael from the Tallapoosa County Sheriff’s Office. They were there to stand outside as a courtesy, in case neighbors had questions.

Investigators brought Updyke inside to ask questions during the search. McMichael, an Alabama fan, thought about the case as he waited out front. “It's sort of like when something happens in law enforcement,” he says. “No matter where it happens, if there's something that's bad, it puts a black eye on the whole profession. He put a black eye on the Alabama fanbase.”

After a while, the Auburn detectives sent Updyke outside because they were tired of listening to him talk. McMichael and Hough babysat. Updyke talked about his son, Bear Bryant Updyke, and his daughter, Crimson Tyde Updyke. He didn’t mention the case. He did go on about Nick Saban’s Alabama team.

“We didn’t ask him any questions. Bill and I would cut eyes at each other, like, ‘Good gosh,’” McMichael says. “He never asked me my name or anything, and I never offered it to him.”

Inside, police were focused mostly on finding Updyke’s laptop. They suspected there would be a search history revealing Updyke had researched his poison options. How else would anyone know what Spike 80DF tebuthiuron was? The computer was nowhere to be seen. “We never found that, and we thought that was kind of suspicious,” Sewell says. “Whether he had taken it somewhere else or threw it in the lake.”

It would have been a nice bonus. But Sewell’s team had already built a case. Updyke had admitted to making the call in which he confessed to the act of poisoning the trees. That alone was enough to handcuff Updyke in his front yard. Later, Haynes from the DoA would gather swab samples from the car’s steering wheel and dashboard, both revealing traces of Spike 80DF. 

Before he was taken into custody, Updyke only requested one thing: He wanted his Alabama letterman jacket that was inside.

The investigators loaded him back into the patrol car. Just before they slammed the door and began the trek back to Auburn, one declared, “War Eagle.”

‘Can you help me get a lawyer?’

A few days after the arrest, Finebaum answered the first of many unexpected private calls he would receive from Updyke. Their complex relationship was in its early phases. Eventually, Finebaum would be the only media member granted a visit with Updyke during his incarceration. They would talk from time to time, publicly on Finebaum’s show and privately, before Updyke’s death. Finebaum wasn’t afraid to call 

Finebaum is a former newspaper columnist who possesses the self-awareness and media literacy to understand that his name will forever be entangled with Updyke’s. He often jokes that Updyke’s radio confession will be in the first sentence of Finebaum’s New York Times obituary someday. Knowing that, he has always been open about the tale.

There’s just one detail he has never publicly shared.

In a matter of days, two court-appointed defense attorneys had backed out of representing Updyke because of their Auburn fandom. Now a third lawyer, Jerry Blevins, was preparing to file a motion to withdraw over “irreconcilable conflicts.” It was Feb. 21. 

“I need to talk to you. They’re trying to screw me over with this lawyer,” Finebaum remembers a nervous Updyke saying on the phone.

He didn’t know where to turn. It was clear that any local court-appointed attorneys would follow others’ footsteps and withdraw: Either they would be Auburn fans or cognizant of the ramifications of representing Lee County Undesirable No. 1.

“He was ranting and raving,” Finebaum says. 

Updyke needed to find his own defense team. “Can you help me get a lawyer?” he asked Finebaum.

“Harvey, I'm not really sure I want to get in the middle of this,” Finebaum said. But his mind was racing. It's not a bad idea to maintain a relationship with this guy. Maybe we can get him back on our show. He didn’t know what to do.

He says his first call after getting off the phone with Updyke was to Richard Jaffe, a prominent Alabama defense attorney who has helped exonerate death row inmates and famously represented Olympic Park bomber Eric Robert Rudolph. “I don’t know what to do with this guy,” Finebaum told him. Jaffe, an Alabama graduate, declined to take the case, according to Finebaum.

Finebaum eventually received a recommendation for Glennon Threatt from Birmingham. Threatt confirmed that Finebaum called him asking if he would be willing to represent Updyke. Finebaum passed along Updyke’s number.

After calling Updyke, Threatt agreed to take on the case for free.

“I knew the case had very high publicity value,” he says. “I was looking for something to further my career, and I thought it was a cool case to be involved with.”

Finebaum still ponders the ethics of his involvement. He thinks there’s an important distinction.

“As a newspaper columnist, there’s no way I would have gotten involved,” he says. “But I’m like, ehh, I’m a talk show host. I don’t know what lines I’m crossing, but I think everyone should be entitled to reasonable counsel. So Glenn got the job.”

On Feb. 22, Threatt filed a notice of appearance. The first time he met Updyke was in court. Updyke wore an Alabama football tie.

“Harvey, what are you doing?” he said. “You’re going to piss off the judge. We’re in Lee County.”

Updyke shrugged. “Gotta represent.”

HarveyUpdyke, a University of Alabama football fan, pleaded guilty to poisoning the Toomer's Oaks in 2010.

The Iron Bowl of court cases: Jordan-Hare Stadium or neutral site?

Building a defense was difficult. Evidence was overwhelmingly stacked against Updyke, and taking the case to trial would be like Alabama playing the Iron Bowl in Jordan-Hare Stadium with referees who were raised on Auburn’s Bodda Getta cheer. The jury would be a selection of Lee County residents, and Updyke’s attorneys feared Judge Jacob A. Walker was an Auburn fan. Walker turned down an interview request for this story.

Everett Wess joined the defense team. He and Threatt had worked together on capital murder cases before. The district attorney offered a 10-year sentence. Updyke was insistent with his lawyers: Plead not guilty, and go to trial. He was 62 with a list of health issues. He didn’t expect to make it to 70.

“The way Harvey looked at it, he said, ‘If I’m convicted for 10 years, I won’t live,’” Wess says. “‘That’s like the death penalty for me.”

The only problem: Updyke kept getting in his own way.

As the seasons changed, Threatt often took Updyke to Zaxby’s for fast food in Auburn. During their lunches, he would advise Updyke on how to handle the case’s publicity: Do not speak to media. Do not appear in public. And above all, do not attend Alabama football games. 

“He was a great guy. He was the kind of guy you want to spend an hour with and have a beer with,” Threatt says. “He was funny. Real likable and salt of the earth. He was sincere and genuine. There was nothing fake about him at all.”

But …

“He lived for the publicity, man.”

After a preliminary hearing April 20, Updyke claimed he was assaulted at Tiger Express gas station on U.S. Highway 280. The assailants got away, he said. Photos of his bruised face were entered into the court records. But security camera video showed no evidence of an assault. When Threatt asked Updyke why, he said it happened in the back of the gas station. “What were you doing back there?” Threatt asked him. Updyke never answered that.

“I think he did it to himself,” Threatt says now. “I think he hit himself in the head and pretended to be attacked.”

Updyke was on his way from the hearing to Birmingham to appear in Finebaum’s studio for a live interview when the alleged attack happened. Finebaum had recently made a comparison between Updyke and Tommy Lewis, a figure of Crimson Tide legend. Lewis was on the sideline in the 1954 Cotton Bowl when an opposing running back raced past Alabama’s defense and toward a 95-yard touchdown. Nobody was in his way until Lewis ran off the bench and illegally tackled him at midfield. Lewis explained himself by saying he was “just too full of Alabama.”

“Harvey, you’ve heard that story,” Finebaum told Updyke in a conversation off-air. “You’re just too full of ‘Bama.” 

Finebaum was led to believe the purpose of the interview was for Updyke to apologize to the Auburn fanbase. Meanwhile, Threatt had ordered Updyke not to do it. “It never helps a defendant to talk to the media,” he reiterated. 

Updyke called into the show April 21 anyway. He said he no longer wanted to appear in person, fearing for his safety after the gas station incident. 

The conversation lasted 45 minutes. Updyke never explicitly apologized to Auburn. He did, however, steal Finebaum’s line. Near the end, when Finebaum asked if there was something he wanted to say to Auburn fans, Updyke referenced Tommy Lewis: “They asked him, ‘Why’d you do it?’ He said, ‘I just have too much ‘Bama in me. Too full of ‘Bama.’”

After he ended the call with a “Roll Tide,” Finebaum thought to himself “for about the 15th time,” he says now, “I’m done with this guy. We’re done.”

Threatt was furious. By the end of May, Updyke had been indicted on two counts of criminal mischief, two counts of desecration of a venerated object and two counts of vandalism of a crop facility. He continued to plead not guilty, but now he did so by reason of mental disease or defect.

Then a new football season arrived. Updyke went to an Alabama game. He snapped selfies with fans. On Sept. 29, he called Finebaum’s show again. This time he did apologize to Auburn fans “for what I have been accused of doing.” It was a subdued, remorseful side he had never shown before. He had recently been hospitalized. He was dealing with chronic heart disease and back ailments.

Threatt says he told Updyke after the September Finebaum call, “If  you’re not going to take my advice, you need to get another lawyer.”

“Well, I guess I will,” Updyke responded.

On Oct. 6, 2011, Threatt became the fourth defense lawyer to withdraw from the case.

Wess stayed. A trial loomed in Lee County. Wess asked the judge to step down from the case because of potential ties to AU. Walker declined. Wess tried to reduce the charges to misdemeanors. He filed a motion to set the monetary value of the trees to $20, and he argued that poisoning trees should not qualify as desecration of a venerated object. “Usually you think about messing with a cross at a church or desecrating a grave,” Wess says now. His attempts failed.

But in a case filled with odd twists and turns, the motion Wess wrote requesting to change the location of the trial is the most amusing and encapsulating. 

“The University of Alabama and Auburn University have one of the most intense and passionate intrastate rivalries in this country. This passion arguably has been known to cause mental and physical health problems for fans of the universities and their respective athletic programs. … For many years because of the aforementioned intensity and passion, an important football game called the ‘Iron Bowl’ was played in Birmingham. … 

“The defendant argues pretrial publicity has prejudiced the community of Lee County as it makes it reasonably certain that a fair and impartial trial cannot be had. It makes sense to meet at the historical meeting place of Birmingham where many disputes involving Alabama and Auburn have been decided.”

The last confessions of Harvey Updyke

The motion for a change of venue was denied. At last, it was almost time for a trial in summer of 2012. Witnesses were receiving subpoenas. Jury selection was set to begin June 19. 

But Updyke wasn’t done bragging.

“So one night Harvey calls me,” Finebaum says. “He would just have these late-night calls. And he called me one night, all upset.”

Finebaum told Updyke they couldn’t talk anymore. “I have been subpoenaed to testify against you.” 

He remembers the conversation unraveling in a matter of seconds.

“Well, what are you going to say?”

“Well, I’m simply going to respond to questions about the phone call you made and tell the truth.”

Harvey Updyke, left, leaves the Lee County Justice Center in Opelika on June 10, 2013, with his bail bondsman and his attorney. Updyke was convicted of poisoning Auburn University’s Toomer’s Corner oak trees.

“Tell the truth about what?”

“My only involvement in this whole case, Harvey, is you called in as Al from Dadeville, and you said you poisoned the trees. I don’t know whether you did or not.”

“Of course I did it,” Updyke said. “You know that. I went to the store —”

“Harvey, please don’t say anymore, OK?”

Finebaum felt obligated to call the district attorney the next morning and report Updyke’s latest confession. The DA laughed and told Finebaum the trial would be fairly cut and dried. Evidence was already overwhelming. This latest admission barely mattered.

That was Updyke’s last confession that was never publicly shared. Then came the final one that went viral.

Andrew Yawn had only written a few stories for the Auburn Plainsman student newspaper. He was inexperienced. His dream job was to cover the New Orleans Saints. But on June 19,  he had a crash course in covering hard news. He had been assigned to cover the jury selection. He was in the reporters’ booth at the courthouse, watching Updyke as the charges were read. Updyke’s head was drooped, “chin kind of almost hitting his chest and kind of resting there,” Yawn remembers. There had been rumors about Updyke’s health issues.

Yawn posted his observation that Updyke appeared unwell on a new social media conveyance called Twitter. An older reporter admonished him for speculating: “What are you, a doctor? You can’t say that.”

“Well,” Yawn thought, “I guess I’ll go ask him.”

He was a student. He didn’t know that wasn’t protocol. At a break in the action, Yawn approached Updyke and his wife. They started a conversation. Yawn was from Louisiana. Updyke had family there. They talked for almost an hour. Updyke confirmed his health issues on the record.

Eventually, Yawn gathered up the courage to ask: “Harvey, what really happened that night?”

Updyke looked both ways out of the corners of his eyes. “Did I do it? Yes,” he said. Yawn was taking notes. Updyke didn’t seem to care. He kept talking. Only at the very end does Yawn recall him saying slyly, “Don’t tell anyone.”

Yawn called his editor and described what had happened. “What are kind of the ethics there?” Write the story, he was told.

The Plainsman published Updyke’s confession. The next day, Yawn gave several interviews before police handed him a gag order.

Wess tried to discredit the word of the student journalist. But the confession had stirred more controversy just as the case was finally nearing trial. Two days after Updyke spoke with Yawn, Judge Walker delayed the trial, deeming that media coverage and public interest rendered it too difficult to empanel an impartial jury. In September, Wess motioned to withdraw as counsel.

“I liked him. He was a nice guy,” Wess says. “Just when it came to Alabama football, I guess he had the potential to lose it a little bit.”

Judge-appointed defense lawyers had to carry Updyke to the finish line. On March 22, 2013, nine days after Walker granted a change of venue to Elmore County, Updyke pleaded guilty. The case never went to trial. He was incarcerated for 76 days for poisoning the trees. On April 23, Auburn removed the dying oaks.

If Updyke had never called Finebaum in the first place, Keever estimates Auburn wouldn’t have detected visible signs of death for months. He has no guess as to how long it would’ve taken the university to discover what the problem was. 

But Updyke called.

“He was proud of it,” Threatt says. 

The moment that made Updyke proudest, though, he managed to keep a secret. During one of the many meals he shared with Wess while Wess represented him, Updyke indicated that he had researched herbicides on his laptop. Police did a thorough search of the house on Lake Martin, he told Wess. Investigators looked everywhere — “every room, in the attic, under everything.”

Except for the place where Updyke had hidden the evidence: inside his barbecue grill.

Epilogue: The sour taste of iron

Police never found out the exact night Harvey Updyke poisoned Toomer’s Corner. Sewell even looked through the live webcam footage, finding no “smoking gun moment.” But Updyke did it after dark, between Jan. 14 and Jan. 26, 2011. He mixed the herbicide chemical with soda and poured his drink unevenly around the dirt.

Updyke died in 2020 with close to $800,000 in restitution unpaid. The case was closed.

Sewell left the Auburn PD two years after taking on the case. He enrolled in law school and is now an associate at the Birmingham-based firm Lightfoot, Franklin & White. His first day of law school, everyone was prompted to share a fun fact about themselves. Sewell’s fun fact was that he had led the Harvey Updyke investigation. “The first guy after me was like, ‘I can’t follow that,’” he says.

Dawson, the former police chief, received an apology via one of Updyke’s lawyers months after storming out of the interview. “We were kind of looking forward to hearing the case,” Dawson says, “because we had a bucketload of evidence.”

McElroy keeps his copy of the voicemail. He plays it for students in his class but otherwise seldom shares it. “Fair warning, it gets pretty crass,” he tells his class before pressing the button. “It’s my party trick.”

Finebaum was catapulted to national prominence with help from Updyke’s call. His show expanded from radio to television. His voice is the ethos of the SEC these days, and he still takes callers on SEC Network. In fact, the moment he found out the soil had tested positive, he was in Atlanta, talking to a network about syndicating the show on TV. “The irony of it,” he chuckles.

Ivey’s retail manager who sold Updyke the poison still feels guilty. Ivey doesn’t. He stands by it being an ordinary sale. Ivey lives in Birmingham now. His granddaughter is an Auburn student, the fourth generation of his family to attend AU. “You know, in all the time I was at Auburn, I never rolled the trees,” he says. “I never did. Anyway, shame it happened. That guy’s a lunatic.”

Most people interviewed for this story seldom attend Auburn football games since the incident. Updyke’s crime left a sour taste in their mouths. It was a cautionary tale against taking sports too seriously.

“Like I said, he was one of the most vile people I ever met in my life,” Dawson said in August. “I used to really enjoy Auburn football, but with people like Harvey, it’s hard to enjoy it sometimes. Of course, he’s definitely not the worst person ever. I’m not trying to say that. I’ve met some other folks who were a whole lot worse than Harvey, just in different ways. Harvey was just — I don’t know what. A grown man acting 12 about a sport.”

Then Dawson paused as the conversation ended.

“So, think Auburn’s going to be any good this year?”

Harvey A. Updyke Jr.