A federal judge dismissed criminal indictments on Monday against an art professor at the State University of New York at Buffalo who was charged four years ago with mail and wire fraud after receiving bacteria through the mail that he said he planned to use in his art projects.

Judge Richard J. Arcara of the U.S. District Court in Buffalo ruled that the indictment against the professor, Steven J. Kurtz, was “insufficient on its face,” The Buffalo News reported.

In a telephone interview with The Chronicle on Monday night, Mr. Kurtz said he and his lawyers were surprised at the ruling because it is rare for judges to dismiss federal indictments. “This case was so ridiculous and out of line, and the judge did the right thing,” said Mr. Kurtz. He called the ruling a significant victory, but he noted that the case is not over. The U.S. Justice Department can appeal the judge’s ruling.

The case began in May 2004, when Mr. Kurtz called 911 after his 45-year-old wife died of heart failure (The Chronicle, June 18, 2004). After paramedics tried unsuccessfully to revive her, they noticed petri dishes in Mr. Kurtz’s home filled with what they thought were curious substances. The Buffalo police called officers from the FBI and the U.S. Joint Terrorism Task Force, who came to the home to investigate. They confiscated the petri dishes — which were filled with three kinds of bacteria — plus laboratory equipment.

Mr. Kurtz told authorities that the bacteria were harmless and that he was using the material for research on biological warfare and bioterrorism. The research, he said, was aimed at starting a public dialogue through art. His project was to be part of an art exhibit protesting the federal government’s food policies.

Mr. Kurtz’s colleagues and his lawyer conceded that the work was unusual, but it was not criminal, they said. But in late June 2004, a federal grand jury indicted Mr. Kurtz on felony charges of mail fraud and wire fraud.

Mr. Kurtz is a co-founder of a group of artists and professors called the Critical Art Ensemble. The group has raised more than $300,000 for Mr. Kurtz’s legal defense and also backed a documentary on his case called Strange Culture (The Chronicle, March 16, 2007).

Lucia Sommer is coordinator of the defense fund that has supported Mr. Kurtz. “We’ve always said Dr. Kurtz never did anything wrong; he’s completely innocent,” she said in a telephone interview on Monday night. “He’s an internationally acclaimed, award-winning artist who never should have been charged with anything in the first place.”

A University of Pittsburgh professor, Robert E. Ferrell, who had supplied the microbes to Mr. Kurtz, also was indicted in the case. He pleaded guilty last fall to a misdemeanor charge that he did not follow proper procedures in mailing the materials (The Chronicle, October 14, 2007).

The whole story is pretty complicated. The Feds were actually trying to get Kurtz to plead guilty to criminal conspiracy charges related to alleged violations of a “material transfer agreement” that a scientist in Pittsburgh had signed to get the reagents that Kurtz used in his art work.

So while this whole saga seems absurd, Orwellian, and Kafkaesque, it was in fact a rational (yet still alarming and evil) move on the part of the prosecutors. They wanted to generate a new crime through judicial fiat. If the Feds could get criminal conspiracy charges to work for an alleged violation of a civil contract, they could substantially expand their collection of tools.

Conspiracy is already a remarkably broad cause of action. When conspiracy is married to “providing material support to terrorist organizations,” almost anyone who is Moslem can be imprisoned or deported. But in this case, by going after a native-born non-Moslem, the Feds could both show that terrorism cases were not all ethnically or religiously motivated and give themselves a very powerful weapon to use to prosecute and imprison the innocent.

By Robin Wilson


Image held here

Steve Kurtz on Wikipedia

Critical Art Ensemble Defence Fund