July 15, 2004 – At a June 29 arraignment hearing, a judge ordered that University of Buffalo art professor Steven Kurtz report all future purchases of bio-matter to university and government agents, Assistant United States Attorney William Hochul Jr told The NewStandard.
Kurtz, co-founder of the Critical Arts Ensemble, a group of artists whose work challenges government and corporate control of scientific research, was in court to answer for two counts each of wire and mail fraud. The charges stem from a bio-terrorism investigation into bacteria Kurtz obtained for use in his political art installations. He pleaded not guilty to all charges.
The investigation began after Kurtz dialed 9-1-1 on the morning of May 11 shortly after discovering that his wife, Hope, had stopped breathing during her sleep. The investigation did not result in an indictment related to bio-terrorism. Instead, federal prosecutors decided to charge Kurtz and a colleague with lesser crimes related to the purchase and shipment of innocuous bacteria.
Kurtz and the chair of human genetics at the University of Pittsburgh, Robert Ferrell, who allegedly helped Kurtz purchase the bacteria, each face a four count indictment. The charges could net them up to 20 years each in prison if convicted. But Kurtzâ€™s attorney, Paul Cambria Jr., has downplayed the charges and has been widely quoted stating that the investigation is a heavy-handed approach to "petty theft."
All along supporters of the CAE and Kurtz have said the investigation has had little to do with terrorism, and everything to do with free speech. And now some claim harassment and intimidation are coming into play.
According to a CAE Defense Fund press release issued directly after the Thursdayâ€™s arraignment, "prosecutor Hochul had filled the gallery with invitees from the FBI and Joint Terrorist Task Force. Since they were not there to give testimony, the purpose of their presence seemed to be to make the situation look more serious legally than it is, thereby hoping to influence the judge to make harsher conditions for the accused."
Kurtzâ€™s lawyer, Cambria, said he recognized several of the federal law enforcement officials from prior trials and investigations. "I do not know who they were but one was from the terrorism task force. It is not usual to bring in all the agents unless they are trying to intimidate or create a false sense of importance."
Under his bail conditions, which were set at Thursdayâ€™s hearing by Western New York District Court Magistrate Judge Kenneth Schroeder, Kurtz must now report the purchase of biological materials to the University of Buffalo Biosecurity Officer, the Pretrial Services System, a government body that investigates and supervises defendants, and his attorney. Other restrictions on his actions, such as requiring permission to leave the country and submitting to random drug tests if requested, are routine actions taken by courts when considering bail conditions, Hochul said.
Ferrell was not arraigned the same day. Implying Ferrell was ill, his lawyer, Efrem Grail, asked that a new date be set for Ferrellâ€™s plea, according to Hochul and several news reports. Grail was unavailable for comment at press time.
In a sign that the US Attorney's office might be wrapping up its investigation of Kurtz and the CAE's politics, Arthur Eisenberg of the New York Civil Liberties Union said the subpoena issued to Autonomedia, the small book house which publishes works by the CAE, is no longer active.
According to Autonomedia publisher Jim Fleming, the book house had been subject to a June 22 subpoena in the Kurtz case. The publisher was being advised by the New York Civil Liberties Union, which early on attempted to persuade Hochul to discontinue the grand jury investigation into Kurtz and the CAE. In a letter to Hochul, executive director Donna Lieberman cautioned the US Attorney on going to far.
"It should go without saying that this investigation would be entirely inappropriate and, therefore, unconstitutional were it to have been initiated because of the political views of Professor Kurtz and the Critical Arts Ensemble," Lieberman wrote before the subpoena was withdrawn.
But Eisenberg told The NewStandard on Thursday, "There's no longer any need for the NYCLU to advise Autonomedia on the Kurtz case any longer as the subpoena was withdrawn some time late last week." He had no information as to why the order was withdrawn.
Reached by telephone for comment, Hochul declined to comment on the accuracy of Eisenberg's statement.
"Hereâ€™s the thing," said Hochul. "I canâ€™t comment at all on a pending case, or whether or not thereâ€™s a case or a subpoena. The law says I cannot comment on what an investigation involves."