Buffalo, NY – Dr. Steven Kurtz, a Professor of Visual Studies at the State University of New York at Buffalo and cofounder of the award-winning art and theater group Critical Art Ensemble (CAE), 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 U.S. Department of Justice had 30 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 U.S. Attorney Terrance P. Flynn, the Department of Justice will not appeal Judge 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 20-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.

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.

The next 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 20 years of distinguished work.

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.

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