Apr. 25, 2005 – With less media attention and a new grand jury, nearly a year after it all began, the prosecution of Steven Kurtz looks remarkably familiar.
First, there is the Critical Art Ensemble (CAE), an avant garde group of artists challenging commonly held concepts of art and science.
Then you have Kurtz, a CAE co-founder and an arts professor facing a nightmarish criminal legal battle brought about by the unexpected -- and ultimately unrelated -- death of his wife, Hope.
And there is Assistant US Attorney William Hochul and the FBIâ€™s Joint Terrorism Task Force, the latter called to Kurtzâ€™s house after EMT crews responding to the professorâ€™s 9-1-1 call observed a makeshift lab and bacteria they could not identify.
Finally, there are the bioterrorism charges, first presented to a Buffalo, New York grand jury in June 2004, and, according to sources close to the case, raised once again this week in front a newly empanelled grand jury.
The spiral began on May 11, 2004, when Kurtz, who teaches at the local state university, awoke to find his wife no longer breathing. Calling 9-1-1 in response, he set off an unpredictable chain of events. Emergency responders called FBI after they found Kurtzâ€™s laboratory equipment and unknown biological material. Investigators sealed the house and confiscated books, notes, a computer, artwork, Hopeâ€™s body, their car, and the family cat.
The inquiry did end with an indictment, but not for anything related to bioterrorism.
Two days later, public health officials declared that the bacteria had nothing to do with Hope Kurtzâ€™s death and the house was unsealed. But much of Kurtzâ€™s items related to his CAE work remained impounded, and, spurred by the bacteria found in the home, federal investigators began a wide-ranging investigation into his writings, artwork, and associations.
Little more than a month after the Joint Terrorism Task Force initiated the probe, a grand jury convened to evaluate bioterrorism charges against Kurtz, summoning his friends, colleagues and associates to Buffalo, New York to testify about the Critical Art Ensembleâ€™s use of bacteria and other biological matter in art installations.
That line of inquiry did end with an indictment, but not for anything related to bioterrorism. Instead, Kurtz and the then head of the University of Pittsburghâ€™s genetics department, Robert Ferrell, were each charged with four counts of wire and mail fraud related to the way Kurtz procured bacteria for use in his artwork. Allegedly, Ferrell used the university account to order samples of serratia marcescens and bacillus atrophaeus -- relatively innocuous bacteria -- for Kurtz from American Type Culture Collection, a warehouse and laboratory that provides research materials to governments, schools, companies, and other researchers.
Kurtz was arraigned at the end of June, but the trial date has been pushed back several times at the request of both prosecution and defense attorneys. The trial is scheduled to begin on May 17 of this year.
CAEâ€™s work has included exhibits utilizing DNA, bacteria, and other forms of molecular life to challenge the biotechnology industryâ€™s lack of transparency and to spark public debate.
But now, almost a year since the bioterrorism investigation into Kurtz began, it appears federal prosecutors are seeking to initiate a new round of charges, again related to bioterrorism.
On April 12, the Critical Art Ensemble announced that Steven Barnes, a CAE co-founder and Florida State University communications professor, had been summoned again to appear in front of a grand jury. Barnes is the only person known to have received two subpoenas in the matter.
"The only thing different about the two subpoenas was the date," he told TNS.
The date on which the second grand jury -- again in Buffalo, NY -- began hearing evidence in the case against Kurtz is unknown. FBI and prosecution officials say they cannot publicly comment on whether there is an ongoing investigation, let alone provide details.
Members of the CAE Defense Fund say they have no idea what brought about the renewed investigation.
"According to the subpoena, the FBI is once again seeking charges under Section 175 of the US Biological Weapons Anti-Terrorism Act of 1989, as expanded by the USA PATRIOT Act â€“charges which a previous Grand Jury appeared to reject when they handed down indictments of mail and wire fraud last summer," the statement from the group reads.
TNS obtained a copy of the subpoena issued to Barnes and confirmed the documentâ€™s reference to the Act.
When members of CAE were called to the previous grand jury, they refused to testify, invoked their Fifth Amendment rights on advice from legal counsel. But this time, according to several people familiar with the details of the case, an immunity agreement rendered that option unavailable to Barnes.
The resurfacing bioterror charges are an odd and potentially chilling twist to what should have been a pretty straightforward case.
In emails to TNS, Barnes confirmed that he testified and said he could not comment directly on the grand jury proceedings. "I can only say that if the assistant US attorney is asking the Grand Jury to investigate the issue, the charges are certainly being seriously considered," Barnes wrote. "As to what evidence he has or does not have, I can only say that I have no knowledge of any activities of the Critical Art Ensemble which would in my opinion violate the stated statute."
Barnesâ€™s lawyer, Rodney O. Personius, was unable to provide details of the testimony or confirm the existence of an immunity deal. "The only response I can really give is that Steve did receive a subpoena. He did appear in front of a grand jury and his testimony was compelled."
"It is the Critical Art Ensembleâ€™s feeling that theyâ€™re all subject to this investigation," said Ed Cardoni, director of Buffaloâ€™s Hallwalls Art studio. Cardoni also heads the National Association of Artists Organizations (NAAO), a 23-year-old arts advocacy group acting as the CAE Defense Fundâ€™s "fiscal agent."
"What they do is provocative," he said. "You could even say itâ€™s didactic art -- it has a message and the CAE is trying to get it out. But itâ€™s art; itâ€™s information and knowledge. It is protected speech."
CAEâ€™s work has included exhibits utilizing DNA, bacteria, and other forms of molecular life to challenge the biotechnology industryâ€™s lack of transparency and to spark public debate on scientific issues such as genetically modified food.
CAE members agree with Cardoniâ€™s assessment of Hochulâ€™s ongoing probe. They say that this most recent subpoena shows that the group as a whole is being investigated.
Based on the fact that Barnes is among CAEâ€™s founders, Lucia Sommer, a Defense Fund spokesperson, told TNS she is certain the group is still very much the target of an FBI probe. "The investigation against Kurtz and the CAE apparently never stopped," Sommer said.
Cardoni agreed, suggesting that the resurfacing bioterror charges are an odd and potentially chilling twist to what should have been a pretty straightforward case. "This thing should be over with by now," he said, commenting that there must be serious crimes the Justice Department could be looking into.
Despite extensive investigation, including off-the-record discussions with sources close to the case, The NewStandard was unable to determine that the current federal inquiry into CAEâ€™s use of bacteria in their art installations differs from last yearâ€™s probe.
CAE members and supporters may be dismayed and confused by the renewed grand jury investigation, but it isnâ€™t all that uncommon, said Jack King, spokesperson for the National Association of Criminal Defense Lawyers (NACDL).
"Despite what you've heard about a federal prosecutor being able to get a grand jury to indict a ham sandwich, [in any given case] not enough evidence will be presented for an indictment, or the grand jury's term will expire," King told TNS. "If more evidence surfaces later, the assistant US attorney may present it before a successive grand jury. This happens in all types of cases. Sometimes itâ€™s political and sometimes not."
Donald.A. Henderson, founder of the Center for Civilian Biodefense Studies at the John Hopkins School of Public Health and resident scholar of the Center for Biosecurity of the University of Pittsburgh Medical School, said the ongoing investigation is baffling and troublesome.
"It seems to me that there are a few simple questions -- was he using or seeking to use organisms for purposes of bioterrorism or [seeking organisms] which would even be potentially useful for that purpose? I see nothing that suggests that to be the case."
Asked what might be behind the reopening of charges, Henderson, who led the World Health Organizationâ€™s efforts to eradicate smallpox, brought up a variety of recent domestic cases that have been botched or remain unresolved and suggested it might be a combination of politics and the need for prosecutors to save face.
"I have to recall, however, that the FBI has been totally unsuccessful in dealing with possible or actual bioweapons issues," Henderson noted. "Has the FBI or [Department of Homeland Security], for that matter, turned up anything of significance in the US? I can't think of anything. Thus, it may be that the Buffalo case gives them the opportunity to flex a muscle -- who knows? This is justice post 9/11?"