Prosecutor’s Holy Grail: Another Scalp

By William Fisher

After a four-year legal battle, a Federal judge has dismissed all charges against an avant-garde artist who public officials condemned as a bio-terrorist in a case critics are calling “a persecution, not a prosecution.”

The artist is Dr. Steven Kurtz, a professor of Visual Studies at the University of Buffalo, and a founding member of the award-winning collective Critical Art Ensemble (CAE).

The case started in May of 2004. While Kurtz was preparing for an exhibition of an art installation at MASS MoCA, a museum in North Adams, Massachusetts, his wife of twenty years died in her sleep. When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures.

The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the UK-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Program.

The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programs and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.

Local police called the Federal Bureau of Investigation (FBI). While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized. Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, Marching Plague: Germ Warfare and Global Public Health (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.

The then Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. Attorney in Buffalo, Michael A. Battle -- the lawyer who was later to become the Department of Justice employee who notified eight U.S. Attorneys that they were being fired -- praised the work of the Buffalo Joint Terrorism Task Force.

But after a several-month-long investigation, the FBI and the Department of Homeland Security (DHS) failed to provide any evidence of "bioterrorism" On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz's house and that his wife had died of heart failure.

Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC). Neither the University nor ATCC had brought any complaint, and observers pointed out that scientists routinely share nonhazardous cultures. The Department of Justice (DoJ) further claimed that this alleged contract discrepancy constituted federal mail and wire fraud.

Because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.

Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.

But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defense fund, and Kurtz continued to teach at the University of Buffalo.

When the case finally arrived in a courtroom this month, Federal Judge Richard J. Arcara ruled to dismiss the indictment. It is unclear whether the government will appeal the dismissal.

Lucia Sommer, Coordinator of the CAE Defense Fund, which raised funds for Kurtz’ legal defense, told us that the judge’s decision “is further testament to our original statements that Dr. Kurtz is completely innocent and never should have been charged in the first place.”

Kurtz's supporters said, "The government has pursued this case relentlessly, spending enormous amounts of public resources. Most significantly, the legal battle has exhausted the financial, emotional, and physical resources of Ferrell and Kurtz, as well as their families and supporters. The professional and personal lives of both defendants have suffered tremendously."

The case against Kurtz and Ferrell came to a nation still gripped by the terrorist attacks of 9/11 and the 2001 anthrax attacks. The anthrax attacks occurred over the course of several weeks beginning in September 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others. Despite a massive government investigation costing millions and covering several Continents, the crime remains unsolved.

The FBI named a government researcher, Dr. Steven Hatfill, as "a person of interest" in the investigation. His name was widely publicized in the media for months, but he has never been charged with any crime. Hatfill sued the New York Times for libel, contending that that the newspaper erroneously linked him to the anthrax attacks.

In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine in a motion to dismiss the libel suit. The Times argued that the classification restrictions imposed on the case by the government were tantamount to an assertion of the state secrets privilege.

The “state secrets” doctrine, the newspaper said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because The Times has been denied access to such evidence, specifically documents and testimony concerning the work done by (Hatfill) on classified government projects relating to bioweapons, including anthrax.”

The court agreed and the case was dismissed in January 2007.

The Kurtz-Ferrell prosecution has drawn widespread criticism from both the art world and from legal experts. The New York Civil Liberties Union (NYCLU) questioned the propriety of a grand jury investigation into Kurtz's work. "It doesn't appear that this investigation satisfies the FBI standards that the facts and circumstances of the case must reasonably indicate that a crime has been committed," said Donna Lieberman, Executive Director of the NYCLU.

Patricia J. Williams, professor of law at Columbia University, questioned whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She wrote, "Recently scholars from around the world have been barred from the U. S. for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian."

Critical Art Ensemble (which Kurtz co-founded in 1987 with Steven Barnes) has won numerous awards for its bio-art, including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more than two decades of distinguished work.