ARTIST CLEARED OF ALL CHARGES IN PRECEDENT-SETTING CASE

Department of Justice Fails to Appeal Dismissal
Kurtz Speaks about Four-Year Ordeal

Buffalo, NY—Dr. Steven Kurtz, a Professor of Visual Studies at SUNY at
Buffalo and cofounder of the award-winning art and theater group
Critical Art Ensemble, has been cleared of all charges of mail and
wire fraud. On April 21, Federal Judge Richard J. Arcara dismissed the
government’s entire indictment against Dr. Kurtz as “insufficient on
its face.” This means that even if the actions alleged in the
indictment (which the judge must accept as “fact”) were true, they
would not constitute a crime. The US Department of Justice had thirty
days from the date of the ruling to appeal. No action has been taken
in this time period, thus stopping any appeal of the dismissal.
According to Margaret McFarland, a spokeswoman for US Attorney
Terrance P. Flynn, the DoJ will not appeal Arcara’s ruling and will
not seek any new charges against Kurtz.

For over a decade, cultural institutions worldwide have hosted Kurtz
and Critical Art Ensemble’s educational art projects, which use common
science materials to examine issues surrounding the new
biotechnologies. In 2004 the Department of Justice alleged that Dr.
Kurtz had schemed with colleague Dr. Robert Ferrell of the University
of Pittsburgh Graduate School of Public Health to illegally acquire
two harmless bacteria cultures for use in one of those projects. The
Justice Department further alleged that the transfer of the material
from Ferrell to Kurtz broke a material transfer agreement, thus
constituting mail fraud.

Under the USA PATRIOT Act, the maximum sentence for these charges was
increased from five years to twenty years in prison.

Dr. Kurtz has been fighting the charges ever since. In October 2007,
Dr. Ferrell pleaded to a lesser misdemeanor charge after recurring
bouts of cancer and three strokes suffered since his indictment
prevented him from continuing the struggle.

KURTZ SUMS UP END OF FOUR-YEAR NIGHTMARE

Finally vindicated after four years of struggle, Kurtz, asked for a
statement, responded stoically: “I don’t have a statement, but I do
have questions. As an innocent man, where do I go to get back the four
years the Department of Justice stole from me? As a taxpayer, where do
I go to get back the millions of dollars the FBI and Justice
Department wasted persecuting me? And as a citizen, what must I do to
have a Justice Department free of partisan corruption so profound it
has turned on those it is sworn to protect?”

Said Kurtz’s attorney, Paul Cambria, “I am glad an innocent man has
been vindicated. Steve Kurtz stared in the face of the federal
government and a twenty-year prison term and never flinched, because
he believes in his work and his actions were those of a completely
innocent man. Clients like him are a blessing, and although I have had
many important victories, this one stands at the top of the list.”

As coordinator of the CAE Defense Fund, a group organized to support
Kurtz from the beginning of the case, Lucia Sommer sees the end of the
prosecution as bittersweet, and like Kurtz, is thoughtful about the
broader significance of the case: “This ruling is the best possible
ending to a horrible ordeal—but we are mindful of numerous cases still
pending, and the grave injustices perpetrated by the Bush
administration following 9/11. This case was part of a larger picture,
in which law enforcement was given expanded powers. In this instance,
the Bush administration was unsuccessful in its attempt to erode
Americans’ constitutional rights.”

Referring to the international outcry the case provoked, involving
fundraisers and protests held on four continents, Sommer said, “The
government has unlimited resources to bring and prosecute these kinds
of charges, but the accused often don’t have any resources to defend
themselves. This victory could never have happened without the
activism of thousands of people. Supporters protested, vocally opposed
the prosecution, and refused to let it go on in silence. And without
their efforts at fundraising, Kurtz and Ferrell would not have been
able to defend themselves from these false accusations.”

Sommer added that the next step for the defense will be to get back
all of the materials taken by the FBI during its 2004 raid on the
Kurtz home, including several completed art projects, as well as Dr.
Kurtz’s lab equipment, computers, books, manuscripts, notes, research
materials, and personal belongings. The four confiscated art projects
are the subject of an exhibition entitled SEIZED on view at Hallwalls
Contemporary Arts Center in Buffalo, NY, through July 18:
http://www.hallwalls.org/visual_shows/2008/show_seized.html.


BACKGROUND TO THE CASE

The case originated in May 2004, when Kurtz’s wife Hope died of heart
failure as the couple was preparing a project about genetically
modified agriculture for the Massachusetts Museum of Contemporary Art.
Police who responded to Steve Kurtz’s 911 call deemed the Kurtzes’ art
materials suspicious and alerted the FBI. Kurtz explained that the
materials (legally and easily obtained basic life science equipment
and two harmless bacteria samples) had already been displayed at
museums throughout Europe and North America with absolutely no risk to
the public. However, the following day, Kurtz was illegally detained
for 22 hours on suspicion of bioterrorism, as dozens of agents from
the FBI, Joint Terrorism Task Force, Homeland Security, Department of
Defense, ATF, and numerous other law enforcement agencies raided his
home, seizing his personal and professional belongings. After a
federal grand jury refused to charge Kurtz with bioterrorism, Kurtz
and Ferrell were indicted on two counts of mail fraud and two counts
of wire fraud concerning the acquisition of $256 of harmless bacteria
for one of Critical Art Ensemble’s educational art projects. (Critical
Art Ensemble is the recipient of numerous awards for its projects,
including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky
Freedom of Artistic Expression Grant, in recognition of twenty years
of distinguished work: http://www.creative-capital.org/index2.html.)

The Department of Justice brought the charges in spite of the fact
that the alleged “victims of fraud”—American Type Culture Collection
and the University of Pittsburgh—never filed any charges or complained
of any wrongdoing, and the fact that in bringing the charges the
Department of Justice was acting completely outside its own
Prosecution Policy Relating to Mail Fraud and Wire Fraud (http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm
).


For more information and extensive documentation, including the
Judge’s dismissal, please visit:
http://caedefensefund.org

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Paul Brown - based in the UK May - June 2008
mailto:[log in to unmask] == http://www.paul-brown.com
UK Mobile +44 (0)794 104 8228 == USA fax +1 309 216 9900
Skype paul-g-brown
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Visiting Professor - Sussex University
http://www.cogs.susx.ac.uk/ccnr/research/creativity.html
====