Wednesday, April 23, 2008

UB art professor Steven Kurtz cleared of federal charges

UB art professor Steven Kurtz cleared of federal charges

Use of bacteria in workled to terrorism probe

By Michael Beebe and Dan Herbeck - News Staff Reporters

Updated: 04/22/08 9:08 AM

For the first time in four years, since his wife died of heart failure in their Allentown home, setting off a government investigation into whether he was a terrorist because of the bacteria he kept for his artwork, Steven J. Kurtz is finally free of federal charges.

Kurtz, 49, the University at Buffalo art professor and co-founder of the Critical Art Ensemble, saw a federal judge dismiss the government charges Monday as “insufficient on its face.”

U. S. District Judge Richard J. Arcara said the government could not support the charges of wire fraud and mail fraud for the way Kurtz obtained bacteria from a fellow academic at the University of Pittsburgh, Dr. Robert E. Ferrell.

The dismissed indictment came as no surprise to Kurtz’s lawyer, Paul J. Cambria, who has described the government’s prosecution as “an unbelievable overreaction.”

“Kurtz and Ferrell never dreamed that anybody would claim they were violating some law by basically acquiring Level One — which is harmless — bacteria and trying to create an art project,” Cambria said after learning of the dismissal. “They never thought in their wildest dreams that someone would think that was a crime.”

Cambria said it was an unusual ploy by Assistant U. S. Attorney William J. Hochul Jr. to charge Kurtz with wire fraud and mail fraud, accusing him of breaking the law by obtaining $256 worth of bacteria from Ferrell.

“There’s always a fraudulent statement, a fraudulent act, something, and there’s no fraud at all in this case on the part of these individuals,” Cambria said. “That’s why [Arcara] found it a really inappropriate use of mail and wire fraud.”

A spokeswoman for U. S. Attorney Terrance P. Flynn said the decision was being studied and had no comment on whether the government would appeal.

Ferrell, 64, who is fighting a serious illness, pleaded guilty in February to a misdemeanor charge of mailing an injurious article to Kurtz.

Ferrell was sentenced to a year of “unsupervised release” by Arcara. His wife, Dianne Ferrell, said the government prosecution had been extremely stressful for her husband.

“Although Bob did plead guilty,” she said at the sentencing, “I still support Steve Kurtz.”

“I just think he has better things to do with his life than pay lawyers to fight charges that shouldn’t have been there in the first place,” Cambria said of Ferrell on Monday. “I just think he cut his losses due to his health circumstances.”

The end of Kurtz’s charges came relatively peacefully Monday compared with the circumstances in which they were first brought.

Kurtz had been working with his wife, Hope, in May 2004 on an art installation called Free Range Grain, a project taking a look at genetically modified agriculture at the Massachusetts Museum of Contemporary Art.

Hope Kurtz suffered heart failure and died in the couple’s College Street home in Allentown . Emergency responders, including Buffalo firefighters and Buffalo police, said they found aluminum foil covering the windows and petri dishes with growing cultures in them.

Soon there were FBI agents from a terrorism task force in white biohazard suits, who searched the house for eight hours as stunned neighbors tried to figure out what was going on.

The next thing that happened, after prosecutors talked of a bioterrorism threat, was a federal grand jury indictment of Kurtz on felony mail fraud and wire fraud charges in June 2004.

FBI agents took Kurtz’s computers, books, an unfinished manuscript of a book he was writing and also refused to release his wife’s body until it could be examined for contamination.

A week later, after the state Health Department released test results showing there was nothing in Kurtz’s home that posed a public health risk, Kurtz was allowed to return home, and his wife’s body was released to him, according to the Critical Arts Ensemble Web site.

A defense fund collected $250,000 for Kurtz’s defense on charges that he said smacked of McCarthyism.

At Ferrell’s sentencing in February, Kurtz’s emotions finally boiled over.

Kurtz stepped in front of Hochul, the prosecutor, in Arcara’s courtroom, and started berating him as Hochul tried to leave.

A court security officer stepped in, and both men later declined to comment.

A Kurtz spokeswoman afterward said he was upset that prosecutors had filed charges against Ferrell and what Hochul had told the judge about Kurtz’s art.

Arcara wrote in his 12-page ruling that Kurtz was not authorized to obtain the bacteria and went through Ferrell, the principal investigator for the University of Pittsburgh ’s Human Genetics Laboratory and chairman of its department of human genetics.

Ferrell in turn bought the material from American Type Culture Connection, which had an established relationship with the University of Pittsburgh .

When the government indicted Kurtz, there was no mention of biological terrorism. Kurtz was charged with wire fraud and mail fraud for the way he obtained the material.

“This is not the usual mail and wire fraud case, and I’ve been involved in a hundred of them in the last 25 years,” Cambria said. “There’s always, in those cases, a complete and directed misrepresentation in order to get property to go from Point A to Point B.”

Cambria filed a motion with Arcara asking him to dismiss the case.

Over the past four years, the U. S. Justice Department’s prosecution of Kurtz has touched off protests by many artists and college professors in Buffalo and elsewhere.

Kurtz’s supporters have called the case a Bush administration attack on artistic freedom, claiming that Kurtz was targeted because his offbeat art exhibits raise critical questions about government policies. The Justice Department has denied the allegations.

The Kurtz case has spawned a critically acclaimed docudrama, “Strange Culture,” with Jay Ryan and Oscar winner Tilda Swinton. and

© 2008 The Buffalo News.

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs

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