Breithaupt and Hupp’s second complaint was that the “trial court erred in admitting incompetent evidence which unduly influenced the jury to appellants prejudice.” In particular, they objected to the introduction of eBay records, email records (including Jim Breithaupt’s “five finger discount” letter) and bank records. The appeals court rejected this argument, too. Of the email, the court found that “appellant’s counsel offered no specific objection, other than stating for the record [that a disc containing Breithaupt’s emails] was among those which he had not received until the Saturday before trial.” As for the bank records, “Hupp authenticated the records to confirm they were accurate copies, and both parties admitted by default the documents were authentic.”
On December 10, 2003, the appeals court released this bad news to Hupp and Breithaupt. Undaunted, Hupp got right to work on an appeal to the Ohio Supreme Court. Her complaint was basically the same, though she complicated the language a bit. “A trial court abuses it [sic] discretion and violate [sic] the due process rights of litigants when it fails to continue a trial when the non-moving party has failed to provide discovery and has withheld evidence it seeks to introduce at trial.” The second proposition, which again mentioned the emails and bank records, was longer still. But where the Fifth District spent a great deal of time going through Hupp’s arguments before dismissing them, the high court, on May 12, 2004, was almost perfunctory. It dismissed the appeal for “not involving any substantial constitutional question.”
The pair was 0 for 3 in Ohio courts. Despite that sorry record, Breithaupt’s legal fortunes were on the wane.
A Needed Voice in Our Midst
To any observer, the federal criminal case seemed dormant. The civil court verdict had come almost three years after the crime was discovered—time enough, it would seem, for the federal investigation, no matter how thorough, to have resolved itself. For that reason, many people at Kenyon—to the extent that they were still thinking about Breithaupt and Hupp—assumed the civil case had replaced, not joined, the measure of justice the government was meant to provide. But Breithaupt, if he had been paying attention at all, suspected the truth: more bad news was coming.
Though the investigation had taken a long time—and been interrupted by the attack on the United States—it was, in fact, still ongoing, even if the pace approached a crawl. In November 2002, after months of dormancy, Kenyon provided the FBI with fifteen manila file folders from the Kenyon Review archives. These were files Breithaupt was suspected of having grazed, but not outright stolen. The FBI sent these to the Columbus Police Department’s Latent Print Unit which reported, in January 2003, that only some of them had been touched by the thief. These included the files of E.L. Doctorow, Lewis Hyde, Marilyn Hacker, P.F. Kluge, Joyce Carol Oates, Royal Rhodes, Timothy Shutt, and George Steiner. Several of these were people affiliated with the college or the journal—Marilyn Hacker, for instance, was a poet who had once been the Kenyon Review editor—and so their monetary value was limited. But some contained correspondence that was worth real money, or, at least, literary cache.
In February 2003, just after the civil verdict, the Columbus office of the FBI updated the parent office in Cincinnati. “The civil case utilized, in large part, much of the same evidence which had previously been uncovered in [the] investigation, although developed independently by the college.” That is, Kenyon’s own investigation had been thorough. This included, as it happened, an effort to discover if what Breithaupt had said was true was true: could the college have been throwing away its treasures on the back dock of the library? The idea seemed, from the first, to be ridiculous—but in order to prepare for the trial, it needed to be investigated. It was, and found, in fact, to be ridiculous. But that did not stop Kenyon from amending the way they de-accessioned materials. In a fairly onerous development, both Barth and Temple, from then on, had to sign-off on any item anyone wanted to throw away.
The Columbus office of the United States Attorney, too, had been following the civil trial, though it still had not made a decision about whether or not to prosecute. In July 2003, the FBI noted that if the federal prosecutor was not going to go forward, agents from the IRS and the state of Ohio had expressed interest in doing so. Whatever the case on a prosecutorial decision, the FBI part of the process, which had been negligible for about a year, had come to an official end: “all logical and appropriate investigation has been conducted in this matter.” The investigation came to a close on July 7, almost exactly three years to the day after it was opened.
What was referred to by the FBI as the “prosecutive decision” was still several months off, but it did arrive eventually. In early 2004—before their appeal of the civil case had even been denied by the Ohio Supreme Court—Breithaupt was informed he was going to be indicted. For four years the case had seemed real, but distant—like some grim specter approaching on the horizon. Then it finally showed up.
In truth, it was something of an anticlimax. It had been so long since the discovery of the crime—time enough for a whole new crop of students to have come and gone from Kenyon—that there could be no sense of swift justice. It was just the next bad thing that happened in this luckless man’s life. Nor was it a final vindication of Kenyon College—a complete airing of the entire crime that the librarians could show to the people who had doubted for so long. If anything, it was the opposite: the way it unfolded at least lent credibility to the couple’s idea that it was all a vindictive undertaking on the part of an egg-faced administration.
For one thing, the case encompassed only a period of two years, and focused not on the thefts of the items from Kenyon, but on their interstate travel. Like most people at the federal level, Breaithaupt was charged with transportation of stolen items. That is, he “knowingly sold and offered to sell, purchase, exchange, transport or receive, archeological resources, in this instance, books, documents and articles,” using interstate commerce. This description of the crime allowed him what he always wanted—plausible deniability. Because it had taken so long, and the case mentioned nothing about the thefts themselves, it allowed him to tell people that the prosecution, finally, was a face-saving effort undertaken by Kenyon and the federal government to justify, on the one hand, the expense of the investigation and, on the other, their own incompetence. In later years, he—and others on his behalf—would joke about the “archeological resources” part of the charge, as if it represented how ridiculous and capricious the accusations against him were.
Hupp, for her part, was not indicted at all—a fact that was stranger still because it was she, far more than he, who was most responsible for the transportation of the stolen goods. But Breithaupt, loyal to the end, essentially fell on his sword, making sure as part of his plea that she was not charged. Her name was all over the FBI investigation records—and mentioned plenty in subsequent federal court documents—but in the end Breithaupt was the only one prosecuted. To the wronged folks at Kenyon, the resolution just felt unsatisfying.
Still, satisfying or no, it was not nothing. There was a very real chance Breithaupt could spend a lot of time in jail. Out of money, and repeatedly let down by the person supposedly representing his best interests, Breithaupt opted for the counsel of a Federal Public Defender. It was his best legal decision ever. The FPD are skilled professionals mercifully unswayed by the legal opinions of their clients’ live-in girlfriends. At a time when Breithaupt’s freedom was at risk, that was exactly what he needed. Over the course of several months in 2004, his publicly-supplied attorney, Alison Clark, worked with the local US Attorney, Michael Marous, to figure out the circumstances of Breithaupt’s guilty plea.
The deal, arrived at in early September 2004, was quite generous. It allowed him to avoid indictment on a great many charges in exchange for pleading guilty to a single count involving $50,251.84 worth of Kenyon material. As with all plea agreements, this allowed him to forgo a prosecution on several other counts. One condition of the plea was that he agreed “to testif
y truthfully and completely concerning all matters pertaining to…the origins of any books, documents or artifacts from Kenyon College that are or have been in the possession of David C. Breithaupt or Christa Hupp, or to which David C. Breithaupt has knowledge.” On December 17, Breithaupt made the plea official in open court before United States District Judge James Graham. Officially, he pleaded guilty to 16 USC 470ee, Unauthorized excavation, removal, damage, alteration or defacement of archaeological resources. He was then released on his own recognizance to await sentencing, with the stipulation that he stay in the state of Ohio and undergo drug abuse counseling. He was also ordered to surrender his passport.
Once he had pleaded guilty—he signed the plea agreement on September 22—the only task that remained for Breithaupt was to try to convince the sentencing judge to be lenient. First, a presentencing report—standard procedure in the federal criminal system—would be created. Compiled by a probation officer, this report allows for the nature of the crime to be detailed, for victims to have their say about the impact, and for a short history of the guilty party to be written. At the end, the probation officer forwards a sentencing recommendation. Because there was no trial, and therefore no way for the judge to adequately know the nature of the crime and the criminal, the presentencing report essentially filled in the blanks. After Breithaupt’s report was compiled, it was distributed to both sides for review. Then the prosecution and defense commented, in a memorandum to the court, on what it said, and forwarded their sentencing recommendations to the judge for him to consider.
If the Breithaupt defense could be said to have had a theme, it was this: no jail time. The first paragraph of the twelve page defense Sentencing Memorandum for David C. Breithaupt said so right up front:
David Breithaupt, through counsel, hereby requests that this Court impose a sentence in his case that would not require him to serve a term of incarceration. The Pre-Sentence Investigation Report (PSI) in this case recommended a term of incarceration of 12 months in prison. Based on a combined consideration of the United State Sentencing Guidelines and 18 USC § 3553(a), Mr. Breithaupt submits that imprisonment is not required in this case to achieve punishment, deterrence, and rehabilitation of the offender.
Among the reasons the defense asked for such leniency was that “Breithaupt agreed to return books immediately after his crime was discovered, and continued to return books after a guilty plea was entered.” This was a claim that could be described as technically accurate; in spirit, it was a lie. Breithaupt had agreed to the initial exchange, in the immediate aftermath of the discovery of theft, with the aid of counsel, and the absence of Christa Hupp. More than four years later, after his guilty plea, he also finally facilitated the return by his brother Jim of nine Kenyon books. Again, with the aid of counsel, and not Hupp. But between those points, when Hupp was around, it had been impossible to get Breithaupt to admit to any thefts, much less give any books back. He had lied, stonewalled, and blamed Kenyon at every turn—he certainly had not cooperated in the repatriation of the college’s books.
Aside from this exceedingly generous interpretation of the facts, his attorney also played up his chemical addiction, noting that, as a methadone user, Breithaupt was likely to suffer greater discomfort than a normal inmate once he was incarcerated. But most convincingly, the defense noted that “grinding years of civil litigation against Mr. Breithaupt and the partition of his family’s estate have served, in part, to reflect the seriousness of the offense and to punish and deter him.” This part, at least, was true.
Still, Breithaupt did not simply hitch his defense wagon to the star of the Federal Public Defender. In the months after his plea, he beat the bushes to get friends and acquaintances alike to write letters on his behalf. He had routinely asked people for money over the previous decade, and now he was asking them for their words. For that reason, he felt that novelists were the best people to ask. Or it may well have been that the only ones willing to write on his behalf were people who did not know him very well, and trafficked in fiction. Whatever the case, he appended their letters to the sentencing memorandum.
Several of those who felt obliged to take his part were Kenyon College faculty members, some of whom even wrote their letters on college letterhead. Though this seeming support of the thief by people affiliated with the college would rankle many in the library—as had the lack of news coverage and other tacit local support for Breithaupt—these members of the faculty were mostly even-handed in their assessments. Chief among them was P.F. Kluge, a man who had become a fixture in the English Department during the course of the 1990s and was by the end of that decade something of an institution.
In 1993, Kluge published a book about the 1991–1992 school year at Kenyon. Titled Alma Mater, it was a terrific account of a year in the life of a small college. Two decades later it is still that, but also an artifact of its time—a unique look at what was vexing the faculty, students, and administration at that point in American higher education. Kluge’s book goes month-by-month, showing the life of the college, its trends and tensions, its successes and failures. Strangely, despite the relatively comprehensive nature of the book, he does not talk in any serious way about the library. In fact, the campus bookstore makes a dozen more appearances than does the library. It is a strange omission in an otherwise fine book. What does come through, though, is that Kluge is something of a student of the central Ohio land around Gambier, and liked to explore the small towns and villages in the area. As it happened, one of the people with whom Kluge visited some of these towns was David Breithaupt. The two travelled together on a number of occasions, eating at restaurants, talking about writers, and taking in local color. (Sadly, none of these adventures is described in the book.) Kluge almost certainly knew Breithaupt only the way most others did—as a quirky, earnest fan—and was not roped into his crimes the way Shiftlet was. And to Kluge’s credit, he recognized the seriousness of Breithaupt’s crimes once he heard of them; he was not afraid to write in his letter to the sentencing judge that “the fact that he is my friend does not render him incapable of doing wrong.” But he also had a great deal of sympathy for Breithaupt and felt mercy was the order of the day. He said as much to the court. While he supported the importance of the library culture at Kenyon, he hoped a short sentence would allow Breithaupt to “return as soon as possible to a life that can still be credible and decent.”
Another Kenyon English professor, Lewis Hyde, was just as fair and sensible in his letter. Like Kluge, Hyde had been friendly with Breithaupt for more than a decade but he, too, recognized that the thief had “betrayed a trust extended to him by Kenyon College.” He was clear that Breithaupt needed some punishment, but he hoped the judge would make it as short a sentence as possible so that he could “reestablish himself in his home community” and, in the long run, be a benefit to society.
Most of the letter writers, of course, had no connection whatever to the college and only a little bit more to David Breithaupt. But this did not stop him from asking, nor them from writing—though some are merely tepid endorsements of Breithaupt’s character, sent by people who, while they must have felt uncomfortable saying no, did not spend a whole lot of time on the effort. Beat poet Charles Plymell (whose prose and poetry had recently been published in a book co-edited by Breithaupt) and his wife Pamela, for instance, sent three uninspired lines. Of course, many others were very effusive. Author, and frequent NPR contributor, Andrei Codrescu recounted his “long and fruitful” association with Breithaupt and hoped that the court “sees some way to value Mr. Breithaupt’s gifts without harming him. He is a needed voice in our midst.” Jay Parini, a well-regarded author and professor at Middlebury College, believed “very strongly that David is a chastened individual who presents absolutely no threat to society and who needs no punishment worse than the current dilemma that he faces.”
Author Charles Bowden gave his Breithaupt letter a great deal of attention. He wrote two pages, noting that Breithaupt was a perso
n who, “left to his own devices, would do little but read and write. I can seem [sic] no harm coming from his being left in the community and little to be gained by having him jailed…Indeed, I think there is much to be gained by his remaining in the community since he is by nature and family heritage, a civic-minded person...” He went on to note that incarceration would serve no useful purpose because Breithaupt was not a career criminal but rather a man who simply made a mistake.
By far the most famous and significant writer to come to the aid of the library thief was Jonathan Lethem, a storyteller so gifted he could call Breithaupt a writer “of considerable talent and accomplishment.” Lethem wrote that he was “one of so many of us who was horrified at the series of misunderstandings which have led him to this impasse.” He hoped Breithaupt’s “mistake” could be corrected without harsh measures—presumably jail—and went on to state that Breithaupt deserved mercy; “he’s not someone who’ll ever provide any threat to society—at any level.”
Like Lethem, most of the people who wrote these letters had no idea what they were talking about. They knew little about the case and less about Breithaupt. He was, for most of them, a well-read groupie who tried to cultivate relationships with successful authors to raise his own esteem. In truth, Breithaupt was a very real threat to society and the print culture to which these authors owed their livelihoods. He proved willing to steal and destroy unique cultural items simply for the sake of money. This may seem minor to the wider society, but to authors who often rely on unique items housed in archives and rare book libraries, it should have meant a great deal.
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