I am on record as clearly stating that I am ashamed that Harvey Updyke is associated with my University in any way. I think he redefines the word loser and I would say that directly to his face.
The law is the law, and here is why the State of Alabama (through the Lee County DA's office) can't convict him of Felony Criminal Mischief, as charged (and as wished for by so many Auburn supporters)
The statute defining Criminal Mischief (Alabama Code §13A-7-20 - §13A-7-23) defines the offense as follows:
"with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to property."
The degree (and therefore the severity of potential punishment) is determined by the value of the property damaged. First Degree Criminal Mischief (Class C Felony) requires damage in excess of $2,500; Second Degree Criminal Mischief (Class A Misdemeanor) requires damage of between $501 and $2,500; and Third Degree Criminal Mischief (Class B Misdemeanor) requires damage not exceeding $500.
How does one determine the value of a tree? Alabama Code §35-14-1 sets the value:
Of course, the trees could be defined as "Ornamental trees:"
Even under the worst case scenario, Updyke is only guilty of a Class B Misdemeanor, Criminal Mischief, Third Degree.
The maximum punishment for a Class B Misdemeanor is 6 months in jail (Code of Alabama, §13A-5-7) and a fine of not more than $1,000 (Code of Alabama, §13A-5-12.) Considering the time he has spent in jail awaiting his psychological evaluation, he has probably already met or exceeded the maximum jail time possible for his offense.
It seems to me that the Lee County DA overcharged the case. I can't say why this happened but they are now painted into a corner. They can't win a felony conviction at trial, and they can't risk the PR nightmare that would follow if they allowed a plea to a misdemeanor.
The whole thing makes for good theater, but the eventual outcome is obvious, and Auburn supporters won't be happy when Updyke walks out of the Lee County Justice Center free and clear, having served his debt to society.