Going to Trial
Nearly everyone paying attention knew the matter should have never gone to trial—Breithaupt and Hupp simply had no plausible defense. Even Judge Otho Eyster knew. At 9am on the day the trial was set to begin, he insisted that Kenyon and the defendants take one last opportunity—before a jury was seated—to get together and try to settle the issue. Kenyon, as it had for two and a half years, was willing to do just that. Richard Lovering again insisted that all they wanted was for Breithaupt to give their books back. But the couple once again refused, so the matter went to trial. In a decade of bad decisions, this might have been their worst.
The courtroom was mostly empty except for the parties concerned, the jury, and Dan Temple’s wife, who thought the event might be interesting. There was not even a representative from the Mount Vernon News, which was strange considering the local nature of the proceedings, and the fact that the award had the potential to be the largest ever in Knox County. Of course, this fact was not surprising to the folks from Kenyon. They felt the paper was refusing to cover the story because of misplaced loyalty and nepotism. Hupp was a recent employee of the newspaper, and so had friends on staff. But much more significant was that David’s oldest brother was a senior staff reporter. George—known as “Lem” to his brothers—had, like David, spent many years in New York before returning to Ohio. After a local venture into the tech world failed, he got a job at the Mount Vernon News where, in addition to his reporting duties, he wrote a splenetic column titled “The Grumpy Bachelor.” Despite his gruff exterior, he was very protective of his younger brother, and it was that protection, the people at Kenyon felt, that had shielded David from local news scrutiny. To get news of the trial, local people would have to consult the paper of nearby Mansfield—or even turn to the Kenyon Collegian. But not the Mount Vernon News.
For the college, this local antagonism was more than just an inconvenience—on the eve of the trial whose outcome depended on the opinion of local jurors, it was a concern. And, in a strange way, it was a situation that Breithaupt and Hupp depended on for their defense. Lacking anything like a plausible reason for how they had gotten all of these Kenyon items, they had long relied on the implausible. At trial, they were going to count on the town/gown antipathy of the good people of Mount Vernon to bail them out.
In the contentious runup to the trial, Hupp and Breithaupt constantly blustered that they were going to mount a strong defense, including calling anywhere between fifteen and twenty witnesses. In the event, they only called five, four of whom—Breithaupt, Hupp, Temple, and Barth—were also plaintiff’s witnesses. The only person the defense called that was not also a plaintiff’s witness—their ace in the hole, as it were—was a man named Tom Shiftlet.
Shiftlet was a local man whom Breithaupt had known for years. He sometimes worked as a roofer or carpenter and sometimes helped Breithaupt with Caves Curve Books—moving things around, packing up shipments for customers, and accompanying Breithaupt on “acquisitions” trips to libraries and antique stores. In the first few years after Breithaupt moved back to the area, they hung out together quite a lot, but by the second part of the 1990s, they saw each other rarely. According to Shiftlet, Hupp’s possessiveness of Breithaupt had intruded on their relationship. Nevertheless, despite their having not spent much time with each other in the past half-decade, Shiftlet was somehow witness to the two events most crucial to Breithaupt’s defense.
The first of these was in the summer of 1997 when Breithaupt was hauling trash up from the basement and discovered the many treasures contained therein. Shiftlet, according to his testimony, was with Breithaupt when he made the Phillip Rice discovery and accompanied him to the office of Jami Peelle where she apparently said to the men “feel free to trash pick all you like.” Shiftlet was also, according to him, with Breithaupt when he subsequently tried to convey to Carmen King that the things they were throwing away were worth a great deal to the college. When she ignorantly ignored his advice, according to Shiftlet, he heard Breithaupt lament, “Oh, well, we tried.”
But if Shiftlet’s convenient memory of King and Peelle’s flagrant disregard for Kenyon materials was hard for a jury to believe, they hadn’t heard anything yet.
I’m Not Real Familiar with the Court
The Village Antique Mall sat at 42 South Main Street in Johnstown, Ohio. Like a lot of Main Streets in the Midwest, this one was a block-length unbroken row of brick buildings with a variety of storefronts, from bars to pawnshops to beauty salons. The Village Antique Mall was one of these, selling a collection of items, including knick-knacks, furniture, and books, only a small portion of which could properly be called antique. It was the sort of store that exists in many towns of that size in Ohio and this one was only remarkable because it sat at the midway point between Breithaupt’s house and Columbus. It was also the home of conservative politician John Ashbrook, a longtime member of the House of Representatives who was something of a bête noire to David’s father George. So maybe the son had it in for the little town. Whatever the case, in conjunction with the back dock of the Olin and Chalmers Library, and a variety of local book sales, this store was where Breithaupt early on put his fate, mentioning it often for its near-magical ability to supply him with books.
It was a lie that would have been difficult to believe even for people who had not seen the store. For those who had, the idea was impossible. The bookselling area of the Village Antique Mall was on the second floor in an open room with shelves and tables and books strewn around in a way that did not immediately suggest high value. One of several stores occupied by Susan Studer, the collection rarely had anyone watching over it. Studer had a consignment business out of her home, and a nicer place to sell books in a Columbus suburb, so she simply did not have time to spend in Johnstown. And she did not have the need, either, because nothing there was very valuable. The books Studer kept there were the sort she thought tourists might be interested in, but nothing that was at all valuable or printed before the nineteenth century: Johnstown was not exactly an antiquarian book hub, so anyone interested in hunting for fine works would instead go to nearby Columbus.
But, like most lies of this sort, the Johnstown myth gained heft with age. So there on the stand, under oath, Tom Shiftlet said he saw Breithaupt purchase a 1635 Mercator Atlas—one of only four of its kind in the country and a book that would later be sold for nearly $5,000—at the Village Antique Mall. (Though Shiftlet did not know it, this supposed purchase happened only a few weeks after the book disappeared from Kenyon College’s Special Collections.) Further, according to his testimony, Shiftlet lent Breithaupt the $50 to buy the book, priced at $35. This, not coincidentally, was the same price Breithaupt told his brother he paid the Village Antique Mall for the box containing the first edition Huck Finn and the signed Yeats book. The tragicomic tale of David Breithaupt’s attempts to weasel out of his just deserts is littered with cameo appearances of “facts” so threadbare it is hard to imagine he thought them through at all—and there can be no better example than this. If he was to be believed, Susan Studer, a reputable dealer in rare books, had an incredible knack for finding really rare and valuable tomes and an equally incredible business-killing need to settle on the $35 price point.
According to Shiftlet, Breithaupt showed him the book and suggested that it must only be a facsimile. Of course, anyone looking at the book—even someone who did not know books at all—could tell it was not a facsimile. The pages looked, felt, and smelled old, and the binding was worn and scuffed; facsimiles, no matter how authentic looking, still seem new. The book was in great shape—the only major damage, in fact, was inside the front cover where the Kenyon bookplate had been ripped off—but it was clearly very old. Which raises another part of the pathology of Breithaupt’s lies—they so often weren’t believable. Assuming for a second that his conceit of a facsimile can be believed—why would it be priced at $35? That is, if the book is genuine, it is worth so much more than that; but if it’s merely a
facsimile, it is worth much less. And so why would a man, struggling for every dollar, asking friends for money, making barely above minimum wage, waste $35 on a book he thinks is a facsimile? Like so many others, it was a not-very-good lie meant to trick a friend.
It is possible that Shiftlet was in on the whole thing from the beginning, and he was outright lying to authorities—including the FBI—and, at this point, a jury of his peers. But a far more likely scenario is that Breithaupt was using him for his own benefit, a thing he was doing fairly regularly with friends, family members, and acquaintances. But at trial, Kenyon’s attorneys took the first explanation—and settled on a pretty good reason as to why.
The plaintiff’s attorneys were not blind to the technique the defense was relying on. Lovering understood a quality of college towns where locals feel, at best, overshadowed and, at worst, exploited by the institution they host. But the plaintiffs had reason to know that Shiftlet had a more than passing interest in seeing Kenyon get egg on its face. His mother had filed an unsuccessful lawsuit against the school years earlier—a lawsuit Lovering had defended against. And just to demonstrate the small-town feel of everything that seemed to go on in the area, Shiftlet’s mother—who was also friends with Breithaupt—had sued based on the actions of the bookstore owner Jack Finefrock, the man who had apparently sold so many of the great books (and Flannery O’Connor letters) Breithaupt had picked up for pennies on the dollar. Shiftlet’s mother had been a bookkeeper for eight years but was fired, or, depending upon who was asked, encouraged to retire, when she had a hard time adjusting to the bookstore’s new computer system. Between the Shiftlets, Hupp, Breithaupt, and Finefrock—no person in Gambier, Ohio, seemed more than one degree separated from a lawsuit against Kenyon College.
In any event, Kenyon’s attorneys thought that Shiftlet’s mother’s earlier failed suit might be the impetus for his zealousness in repeating the Johnstown story. So that was the subject of a fairly relentless and expert cross-examination that was unpleasant for Shiftlet and no help to the defense. It is important to keep in mind that whatever reason compelled Shiftlet to testify on behalf of Breithaupt—whether he was duped by or in it with Breithaupt—he was certainly put on that stand, unprepared, in the service of Breithaupt and Hupp’s lies. That is, they knew he was complicit in a lie even if he didn’t. It was a perfect example of the way they would lean on any person they knew, even if only slightly, to bail them out of their crimes.
Of course, it wasn’t only Shiftlet’s testimony that sunk their cause. The two named defendants were, in many ways, worse. On the stand, Breithaupt was as bad as he had been in the depositions. For some reason, he thought complicating his lies made them more believable, as if listeners reluctant to believe a man got lucky would trust one who got really, really lucky. This was a tendency that went back to the first time he met with the FBI, and for some reason appeared every time someone asked him hard questions. So, for instance, he had stolen (and sold for $1,200) a three volume set called Narrative of the Expeditions of an American Squadron to the China Seas and Japan, by M.C. Perry, published in 1856. When asked where he got the rare books, he claimed that the first two volumes came from the loading dock behind the library but the third volume came from somewhere else—“I can’t remember where.”
Of the H.G. Wells books that Hupp sold for, collectively, more than $2,700, Breithaupt claimed on the stand he bought them some twenty-three years earlier, while he was in high school. He got them from a used book store in Mount Vernon that had “priced them to sell.” These books, of course, were known to have been on Kenyon’s shelves more recently than that. How the same books could have simultaneously been two places at once for a quarter century was left unexplained. Though maybe the answer had something to do with a contraption in one of Wells’ own stories.
And then there was the long set-piece direct examination when their attorney Burns went through a list of stolen books and asked Breithaupt if he remembered where he got each one. Breithaupt pretended to wrack his brain, coming up with the place where he found one after another after another valuable book, sometimes years apart. Most of these books he claimed to have found on the loading dock.
For instance, of Aaron Arrowsmith’s A New General Atlas, from 1817, sold for $871, Burns asked, “Where did you get it?”
“I remember picking up a box that had several atlases from the Kenyon loading dock area,” Breithaupt said, “and I believe that Arrowsmith was one of them.”
“Okay,” Burns said. “Is that—is the same thing true for the Yellowstone Atlas, which is item number 82?”
“Yes. Yes,” Breithaupt said.
“And number 86, Philippines Atlas,” Burns said. “Is that in the same box?”
“No,” Breithaupt said. “I believe that was earlier.”
“Let’s go back to the Arrowsmith Atlas,” Burns said. “When did you obtain the Arrowsmith Atlas?”
“I believe it was in ’97 or ’98,” Breithaupt said.
“Why do you believe it was in ’97 or ’98?”
“Because it seems like it was in the fall not long after the storage room was cleaned out, which is roughly the same time.”
“Do you believe it was in the storage room?” Burns asked.
“No,” Breithaupt said. “I’m not sure if it was, but it seems like it was after the storage room.”
“I see,” Burns said. “How about the Temple of dier el Bahari. Was that a book which to your knowledge or information was ever part of the Kenyon College Special Collections?”
“I have no idea,” Breithaupt said. “I—I can’t place that book. I can’t remember where.”
“All right,” Burns said. “Let’s go to the Philippines Atlas. You said that was after the other two atlases.”
“Earlier,” Breithaupt said.
“Earlier. Where did you pick up the Philippines Atlas?”
“It was a discard from the loading dock area,” Breithaupt said.
This line of question and answer as to where he remembered—or did not remember—finding various books from the Kenyon collection went on for about forty-five minutes. In the end, for a jury to believe Breithaupt, they would have to believe he had literally made dozens of once-in-a-lifetime discoveries, starting in high school, all of which happened to coincide with losses at Kenyon’s Special Collections.
Of course, not all of his lies were whoppers. He told plenty of mundane ones, too, including one involving an email sent by Hupp to Breithaupt on the evening Kenyon first discovered his thefts. Hupp was frantically going through their stuff to find the O’Connor letter and her email to Breithaupt read: “So do we have to give the letter back? Still can’t find the atlas anywhere—what a mess.”
Of this last phrase, Lovering asked Breithaupt “if you bought this [Mercator’s] atlas, one of four in the country, at the Johnstown book store, the antique mall, why would Ms. Hupp be putting the atlas together with the Flannery O’Connor letter in the same email to you? Why are they associated?”
“Well,” Breithaupt said, “we were just trying to research its origin and couldn’t find really any verifiable proof of its authenticity.”
But, Lovering responded, when Hupp wrote “Still can’t find atlas anywhere—what a mess, she’s not referring to authenticity, is she?”
“I believe she is,” Breithaupt said. But no one believed him.
On the afternoon of January 31, 2003, the jury brought back their decision. After four days of trial in the matter of Kenyon College v. David Breithaupt and Christa Hupp, the conclusion they came to was obvious: Breithaupt and Hupp were lying. They awarded Kenyon College a total of $965,000 in damages. The jurors also decided that the one counterclaim that survived early dismissal by the judge—the claim that Kenyon had kept some of Breithaupt’s books—was baseless, so Breithaupt and Hupp were awarded nothing.
The last words of the proceeding were spoken by Chris Barth as people were getting ready to file out. One of the attorneys asked him where the
books, used in evidence, were going from there. He said they were going back to Special Collections, to be kept “under lock and key.”
There Were Problems on Both Sides
The couple’s first experience with the Ohio judicial system was a disaster. Not only did the jury find that Breithaupt and Hupp had stolen a great deal of material from Kenyon, but they made them pay for it. Worse yet, the couple’s countersuit flopped. And on February 26, when the court officially sanctioned the jury verdict and entered the judgment against the couple, there was more bad news: Kenyon’s award included pre-judgment interest amounting to some $63,000. This raised the total they owed Kenyon to more than a million dollars—by any measure a catastrophic judgment. So two weeks later, without much to lose, the couple went back for another bite at the apple, petitioning for a new trial. This was denied on April 15, just in time for Breithaupt’s forty-fourth birthday. At that point, the only thing left to do was appeal to a higher court, which they did on May 7, 2003.
They had two complaints for the Fifth District Court of Appeals. The first was that Judge Eyster allowed the trial to go forward despite the fact that Kenyon “had engaged in repeated, deliberate abuse of discovery which prevented defendants from adequately preparing for trial.” While it would have been hard to argue with the fact that the defense was not adequately prepared for trial, the appeals court ruled it had nothing to do with the discovery process. “We have reviewed the record, and it appears the parties had engaged in on-going discovery, although there were problems on both sides. From the transcript of proceedings, it appears to this court the exchange of discovery was more than adequate…This court cannot say the trial court’s overruling of a motion for continuance on the morning of the trial, made for reasons appellants had known for nearly two weeks, constituted an abuse of discretion.”
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