Disappearing Ink

by Travis McDade

  The notes from this meeting were transcribed on September 6, 2001. There was nothing particularly special about the interview, except when it occurred: in the last days before four airplanes were hijacked over the skies of Boston and New York. The FBI case against David Breithaupt, like a great many others, came to a sudden halt that day. It was not entirely finished, but in the ten months between September 11, 2001, and July 17, 2002, when the case came to a nominal close, only three brief interviews were done: one with a former student, one with a man who purchased a book, and one with the owner of the Johnstown store from which Breithaupt claimed to have bought so many things. That interview, on July 15, basically consisted of her telling the FBI agent that if she was the sort of bookseller who sold the kinds of things Breithaupt claimed she sold, for the prices he claimed she did, she would be an idiot—and out of business long ago.

  On July 17, “Prosecutive Report of Investigation Concerning David Breithaupt; Kenyon College-Victim; Interstate Transportation of Stolen Property,” was forwarded to the United States Attorney in Columbus. It contained the dates of investigation—5/25/2000 to 7/17/2002—and roughly 1,600 pages detailing the narrative of the offense, evidence, witness interviews, and, something unexpected…the deposition records from a civil suit Kenyon College had filed against Breithaupt and Hupp.

  Tossed Away on the Loading Dock for Disposal

  By May 2001, a year after the library became aware that Breithaupt was stealing their material, nothing, from the Kenyon perspective, seemed to have happened. He was walking around on the loose in Gambier—Kenyon librarians would periodically run into him—acting exactly as he had for the previous decade. Worse yet, he was free to do whatever he wanted with the books Kenyon knew he still had. This was extremely frustrating, though considering the ongoing federal investigation, almost unavoidable. The machinery of the criminal justice system was in motion, and the only thing to do was wait.

  That there was an open criminal file at all was something of an accomplishment. Colleges and universities, when robbed, often choose to sweep the incident under the rug, hoping more than anything to avoid negative publicity. That certainly could have happened here. Few enough people knew about it that it could have been handled quietly. Rank-and-file librarians—the people, not coincidentally, who are stuck cleaning up the mess—are usually the ones most in favor of investigation and prosecution, publicity be damned. But the higher level administrators in libraries, and especially colleges, have no stomach for it. It raises too many questions, and potentially puts at risk too many donations.

  But that did not happen at Kenyon, thanks in large part to Dan Temple. This crime felt like a personal violation, and it bothered him a great deal. So right from the beginning, he and Barth started gathering evidence to present to law enforcement, with little thought that this would be swept under the rug. Once that success had been reached, it would have then been perfectly natural for Kenyon to stand down. But when it became clear that a prosecution was, at the very least, delayed, and might not be in the offing at all, they started to think about what else they could do to get justice. They eventually decided to sue the couple.

  What makes this an astounding course of action in a case like this is not only that it goes against everything in the library-response-to-a-book-crime playbook, but that it is a rather expensive undertaking. No one really had any illusions that Breithaupt and Hupp were sitting on a mound of cash; Kenyon knew the couple was broke, and therefore could not pay even if they lost. (In the law, this is referred to as “judgment-proof.”) So whatever was spent on the trial was, in financial terms, wasted. But it could be justified as a way to exert pressure on the couple to give back books. Maybe more importantly than that, it would also allow the college to take an active part in redressing a wrong that had been done to it. To the credit of Kenyon, including its Chief Financial Officer, this expensive undertaking was given the go-ahead.

  In July 2001, the college filed a civil suit against Breithaupt and Hupp in the local Knox County Court. Kenyon asked for an order restraining the couple from selling any more of the college’s material, a judgment against them in the amount of $200,000, punitive damages in the amount of $1,000,000, and an order “requiring David Breithaupt, Christa Hupp and all those acting in concert with them and in possession of goods, books, manuscripts, letters or other materials that are the property of Kenyon College to return that property to Kenyon College.” Getting their material back had been from the beginning, and remained, the first priority. The school made this very clear to the couple, and the civil suit was simply a way to apply pressure toward that end.

  By this point, of course, the pair no longer had an attorney—the case, Breithaupt said, was “out of Mr. Kepko’s league”—so they countered the suit pro se. That was too bad for them. If they had had an attorney, even one out of his league, he might have agreed that the best course of action was to cooperate with Kenyon. At the very least, he might have come up with a more elegant defense. Instead, the couple spurned Kenyon’s entreaties and decided to rely on the legal defense abilities of Christa Hupp. This was a bad idea. Their main defense was this: the college had been systematically pulling from its shelves its greatest treasures and depositing them in the trash. This is what they had long been saying to anyone who would listen, now they were saying it to the Knox County Court.

  “Kenyon College has used suggestion and self-serving half-truth to perpetuate the false impression that it so desperately needs to sell not only to this Court but to its alumni, and the donor community: that David Breithaupt and not Kenyon’s embarrassing lack of competence, commitment or consciousness, is the reason that valuable pieces of Kenyon’s literary heritage were tossed away on the loading dock for disposal.” Breithaupt’s oft-mentioned excuse—that he had found a steady and consistent supply of expensive books on the loading dock behind the library—would be their mainstay:

  Kenyon College’s first public acknowledgement that its lax stewardship had resulted in the embarrassing loss of valuable books and letters was coupled with the promise that ‘we will continue to work with law enforcement agencies to complete this investigation.’ This is the institutional equivalent of the naughty six-year-old’s vehement ‘it’s not my fault!’ when caught standing over the broken Ming vase. This is Kenyon College’s equivalent of O.J. Simpson’s search for ‘the real killers.’ This is inexcusable!

  They complemented this ill-conceived defense with a petulant offense: a countersuit. The first count of this suit against Kenyon was “trespass.” It stated that Chris Barth and Dan Werner, when they visited the Caves Curve Farm, as agreed to in writing by both parties, “were willful and malicious and [their actions] were done with the purpose of intimidating Defendants and were done with knowing disregard for the rights of the Defendants.” This caused the couple “humiliation and great emotional distress.” The second count charged that Barth and Werner took books that belonged to Breithaupt and Hupp and did not return them. As a direct result of this, the couple “have been damaged in the amount of Two Hundred Thousand Dollars.” (Hupp and Breithaupt later came up with a more specific, itemized approximation of the value of the books they claimed Barth had “illegally” taken from the Caves Curve Farm: $63,122.52. After years of woeful book valuation, they somehow came up with a number they felt accurate down to the penny.)

  The third article of the countersuit was “abuse of process.” That is, Kenyon College threw away books and Breithaupt, “who recognized these discarded items for their value, saved them from disposal in landfills and dumpsters and, in some instances, made them available to others who could recognize their intrinsic value in open markets.” As a result, Hupp wrote, Kenyon tried to deflect criticism by instituting this action against the pair “for the ulterior aim of casting them as scapegoats for the negligence of the Kenyon College.” The couple asked for actual damages in the amount of $550,000 and “punitive damages in an amount not less than Ten Million Dollars ($10,000,000.00) for Plaintif
f’s malice.” Also, an “award of their reasonable and necessary attorney’s fee. And for such other and further relief as this Court shall deem just or equitable.”

  They ended this suit with the worst legal idea in a year filled with them: “Defendants demand a trial by jury on all counts in this action.” It would be difficult to find a single objective sentient being to believe their accusations against Kenyon, let alone a jury-box full.

  Let the Record Reflect Mr. Barth is Snickering

  The run-up to the trial lasted eighteen months and was, of course, very contentious. It was not like either of the two had much else to do. Hupp worked temporarily for a branch campus of Ohio State, but Breithaupt worked only sporadically; for the Village of Gambier for a few months and cutting paper at the Ohio Paper Company for a few months. A 2002 book to which Breithaupt contributed a couple of biographical essays—the book was edited by his friend, author Jay Parini—listed him as a “full time writer.” (This left him plenty of time to get in trouble. Stopped for DUI in April 2002, he claimed he had not been drinking or using drugs, but was driving erratically because his mirror fell from his windshield and he swerved when trying to fix it. Also, he had the flu. When asked if he would consent to a urine test, he refused.) Whatever they were doing, they were not cooperating very much in the discovery process, continually failing to produce documents or even showing up to scheduled depositions. When Breithaupt did show up, he was unprepared, evasive, and almost constantly dishonest.

  For instance, when asked whether he sold or gave any Kenyon materials to Michael Seidenberg, Andrew Hall, or Jonathan Lethem, he said “no no no.” This was a lie, and Kenyon’s lawyers knew it—they had read his emails to these men. They also knew that his story of how he acquired the Flannery O’Connor material he sold on eBay was a lie, but they made him tell it anyway. It came in two parts.

  The first was that he had found three O’Connor letters tucked into a Phillip Rice book at the Kenyon Book Store sale in 1997 or 1998. When asked why he did not sell the letters, including the one he later tried to sell to Bill Richards on eBay, until more than two years after he supposedly found them at the book sale, he said “I don’t know. I didn’t really think there was much of a market value for it.”

  The second part of the story, accounting for the other O’Connor letters he had in his possession, brought him to the back dock of the Olin Library. It was in April 2000, he said, that he found a shopping bag—whose size, construction, and contents he described in detail—sitting out back. It was mostly full of paperbacks and textbooks, but he also noticed it had a folder sticking out of it. He said he pulled just the folder from the bag and left the rest, which he considered junk, behind. It was at this point that Chris Barth, who almost certainly thought he had heard it all, heard just enough more to make him laugh.

  “Let the record reflect Mr. Barth is snickering,” Breithaupt’s attorney said. This was James Burns, a man who had signed on to represent them in 2002. He was an experienced attorney who worked for a solid, mid-sized Cleveland firm; that is, he was almost certainly out of Breithaupt and Hupp’s league financially, but people at Kenyon assumed, as they had with the couple’s first attorney, that he was doing a favor for Hupp. Whatever the case, few attorneys at that point could have hauled the couple up from the hole they had dug for themselves.

  Kenyon College, on the other hand, was represented by Richard Lovering, a very good and experienced attorney from a large Columbus firm. Not that he would have had to have been good, blessed as he was with opponents like Hupp and Breithaupt. In any event, in the midst of the contentious deposition—by that point, not quite two hours into Breithaupt’s second sitting, Burns had objected to nearly sixty questions—Lovering, too, found some humor in the idea of the book-filled bag. “The testimony it…,” Lovering paused, “…tests veracity. But go ahead about the shopping bag.”

  And Breithaupt did. Though he seemed to have a terrible memory for serious and consequential things—the names of people to whom he had sold or given books, for one thing—he had a great ability to recall minutiae. Or, to make it up, as was the case here. In any event, he was able to describe at length the string-handled sack in which he had found literary gold, even remembering, somehow, that on one of the bag’s handles there was a tag on which the name “Neville” was written.

  Breithaupt’s defense was silly and ridiculous, and Lovering poked holes in it almost constantly. Pretty much any time Breithaupt opened his mouth, he was either being evasive or letting fly with a whopper. Still, as preposterous as it sounded, the treasures-in-a-sack defense had worked before in central Ohio, so Breithaupt might have thought he had a fighting chance. In the mid-1970s, a man stole numerous manuscript items from the Ohio Historical Society in Columbus. In 1976, he was caught selling them at several locations around the state. The police got involved, a warrant was issued, and the man was found to have a half-dozen of these items still in his possession—either at his house or in a deposit box at his bank. Investigations by the OHS proved that the case was more than just mere possession of stolen items. The check-in logs showed that the man had gone through the boxes in which the documents were housed—boxes that he had to get special permission to go through. The logs also showed that he attempted to hide his visits by erasing his name, using an alias, and mis-writing his assigned user number on the check-in sheet. When confronted, his explanation for where he got the stolen items did not seem to improve his situation. He said he met an old man at the Westerville Public Library who had sold him, for cash, a grocery sack filled with old newspapers and other documents. It was in the bag that he found the stolen items. That is, there was a great deal of evidence of his guilt, and his explanation for how he found the stolen items was ridiculous. Nevertheless, an Ohio Grand Jury believed the sad sack story, and decided against an indictment.

  Breithaupt could have known the event—it was published in a quarterly journal about rare books that he might have read—but that seems unlikely. The fact that he used so many different excuses for where he got the material suggests he did not spend a lot of time thinking through his lies, even when he knew he was going to be asked about them. He might have simply been steeped in the lore of central Ohio credulousness, and thought that a mind honed by a decade in Manhattan was more than a match for the bumpkins in Cow Town. Whatever the truth, his performance when questioned by authorities suggested a man who was under the influence of something—and whether it was alcohol, opiates, or Christa Hupp, he was ill-served by it. Later in the same deposition, Lovering brought up to Breithaupt his bank statements—the ones that showed him depositing tens of thousands more dollars per year—year after year—than Breithaupt made in salary. As he went through some of them, the lawyer asked about specific deposits that did not match up with any reasonable payments. Lovering noted in 1999 that Breithaupt was making deposits “that are twice your salary on a regular basis. Where was that money coming from?”

  “I was getting some loaned from friends,” Breithaupt replied. Not only was there little evidence of this—he was definitely asking people for money, he just wasn’t getting much—but Breithaupt had already made the point to Lovering that he was the one doing the loaning to other people.

  “Specifically, what loan did you obtain from whom?” Lovering said.

  “A friend, Andrew Hall, loaned me a thousand dollars,” Breithaupt said.

  “When did Mr. Hall loan you a thousand dollars and where does Mr. Hall live?” Lovering said.

  “He lives in Boston, outside Boston,” Breithaupt said.

  “What street does he—”

  “I can’t—it’s a suburb. I can’t remember the name of it,” Breithaupt said.

  “Take your time Mr. Breithaupt. Do you recall what suburb Mr. Hall lives in?” Lovering said.

  “Is there a Belmont?” Breithaupt said. “I can’t recall.”

  “And when did Mr. Hall make this alleged thousand dollar loan to you?” Lovering said.

  “It was
—actually I think it was in 2000,” Breithaupt said.

  “So that does not account—”

  “Christa had cancer,” Breithaupt said.

  “So that does not account for these 1999 deposits; is that correct?” Lovering said.

  “Huh-uh,” Breithaupt said.

  “You have to say yes or no please,” Lovering said.

  “No,” Breithaupt said.

  Later in the deposition he would claim that his brother George was giving him regular payments of $50—though looking at Breithaupt’s bank statement, Lovering noticed plenty of deposits for upwards of $500, but nothing for $50.

  “How often did that take place?” Lovering asked, of the payments George was supposedly making.

  “Oh, on occasion,” Breithaupt said, “whenever he could. When he had extra money he helped out.”

  “How often did that occur?”

  “It was very random,” Breithaupt said. “I don’t recall.” Lovering finally pinned Breithaupt down to a range of more than five but fewer than ten times. Again, less than a single one of the regular and significant payments going into his account.

  So the question of where all the money was coming from was never answered—and Breithaupt’s seeming inability to explain almost anything about his book business spurred Lovering to ask him “Are you suffering from total amnesia regarding 1995 to 2000?” But at least he was sitting down for his depositions. On January 15, 2003, at just after 3pm, Christa Hupp walked out of hers. She did not like some of the questions that were being asked and so she was not going to answer them.