<nettime> FW: update on Steve Kurtz case

[Daniel Perlin <Daniel@undividedproductions.org>]

Federal judge gives the go-ahead to Kurtz case

Motion to dismiss charges "premature'

By DAN HERBECK
News Staff Reporter
1/13/2006

http://www.buffalonews.com/editorial/20060113/1041787.asp
<http://www.buffalonews.com/editorial/20060113/1041787.asp>

Prosecution of Steven Kurtz has caused artists' outcry.

A criminal case that has upset many people in the art world will continue to
move forward in federal court here.

In an opinion issued late Thursday, U.S. Magistrate Judge H. Kenneth
Schroeder Jr. refused to recommend dismissal of charges against Steven J.
Kurtz, a University at Buffalo art professor who was indicted by a federal
grand jury in June 2004.
Kurtz, 47, is a founding member of the Critical Arts Ensemble, a group whose
art exhibits often criticize the federal government. His indictment touched
off debate about artistic freedom and the government's efforts to tightly
control the distribution of bacterial agents in the post-9/11 era.

It would be "premature" to dismiss the charges, Schroeder wrote. The judge
also refused to recommend the suppression of evidence taken from Kurtz's
Allentown home after his wife died there in May 2004.

"Even if it assumed . . . that the government will fall short in the
required proof, a motion to dismiss the indictment must be considered as
being premature and inappropriate in addressing that issue," Schroeder
wrote.  

The judge said he will schedule a hearing to determine whether some
statements Kurtz made to Buffalo police should be suppressed.

Kurtz and Robert E. Ferrell, a human genetics researcher at the University
of Pittsburgh, are charged with illegally obtaining bacterial agents from a
laboratory in Virginia. They are charged with felony mail fraud and wire
fraud. 

Kurtz's attorney, Paul J. Cambria Jr., had argued that no actual crime was
committed. He said Kurtz obtained "harmless" forms of bacteria that he
planned to use "in an art exhibit, to make a political point."

"We plan to appeal this ruling," Cambria said Thursday. "Judge Schroeder
didn't say we were wrong. He said we would have to wait until trial to make
that [dismissal] motion."
Kurtz had no immediate comment. Edmund J. Cardoni Jr., a friend and
supporter, said he is certain the ruling will cause "shock and anger" in the
art world. "I'm still baffled as to why the federal government is using its
resources to pursue this case," said Cardoni, executive director of
Hallwalls Contemporary Arts Center in Buffalo. "In my opinion, Steve is
being specifically targeted because he is a dissenting voice."

Many artists in this country and Europe have protested the indictments,
holding demonstrations in Buffalo and other cities. Some have accused
federal agents of unfairly targeting Kurtz because they consider him a
subversive. The government denies those allegations

Artists have raised more than $200,000 for Kurtz's defense fund.

Schroeder's ruling is only considered an opinion at this point, and Cambria
plans to ask a U.S. district judge, John T. Elfvin, for a ruling on the
indictment and the evidence.
Assistant U.S. Attorney William J. Hochul Jr. said he is "gratified that the
judge reached the conclusion that the police searches were valid and the
indictment was proper."
While authorities never accused the two men of having any intent to commit
terrorist acts, their case resulted from an investigation by the Joint
Terrorism Task Force of Western New York, led by the FBI.

The case had its start on May 12, 2004, when Buffalo police were called to
Kurtz's home after the death of his wife, Hope Kurtz.

Police said they called federal agents because they were suspicious about
the death and because they found an "apparent biological laboratory." The
home was temporarily sealed off by FBI agents wearing biohazard suits.

According to court papers, Kurtz told Buffalo police he had a "biodispersion
device" that "could be used to disperse bacteria" in the home. Cambria is
seeking to suppress that statement and others, which would make them
inadmissible as trial evidence.
Last January, Cambria filed court papers asking for dismissal of the
charges. He said federal agents took a harmless series of events and remarks
and tried to portray Kurtz and Ferrell as "bioterrorists."

But Hochul said Thursday that the men are accused simply of fraud and not of
any terrorism-related crime. He said Ferrell, who contended that the
bacteria was for use in his own university's laboratory, purchased it under
"false pretenses" for Kurtz.


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