May 17, 2005

Judge calls prosecutor's proposal "Pandora's Box"; defense calls for dismissal

Today in Buffalo, Judge Kenneth Schroeder heard motions to dismiss a federal criminal case against artist Steven Kurtz. Professor Kurtz was charged with mail and wire fraud last summer after prosecutors found
nothing to support their original allegations of bioterrorism. (Please see http://www.caedefensefund.org/faq.html for an overview of the case.)

In today's hearing, defense attorney Paul Cambria argued that a dangerous precedent would be set by "exalting" into a federal criminal case of wire and mail fraud what is at best a minor, civil contract
issue--the purchase of the bacterium Serratia marcescens by scientist Robert Ferrell for use by Kurtz in his artwork.

Judge Schroeder seemed to agree, asking Federal Assistant District Attorney William Hochul whether an underaged youth who uses the internet to purchase alcohol across state lines, for example, should be
subject to federal wire fraud charges. "Yes," Hochul answered after some hedging, and Schroeder chuckled. "Wow, that really opens up a Pandora's Box, wouldn't you say?" he asked Hochul.

Schroeder also asked Hochul whether there is any federal regulation at all (OSHA, EPA, or other) concerning Serratia. Hochul admitted there wasn't. (The alleged danger of Serratia forms the basis of the government's argument for making this a criminal case, rather than simply allowing the bacterium's provider to pursue civil remedies if it feels it was wronged.)

Cambria further argued that the FBI intentionally misled a judge into issuing the original search warrant. That judge was never told of Kurtz's lengthy, credible and complete explanation of what the seized bacterial substances were being used for, nor of the fact that Kurtz tasted Serratia in front of an officer to prove it was harmless. Also, the judge was told of Kurtz's possession of a photograph of an exploded car with Arabic writing beside it, but not of the photograph's context: an invitation to an important museum art show. The photograph, by artists the Atlas Group, was one of several exhibited pieces pictured on the invitation.

Because of the photo, the judge issued a warrant calling for the seizure of anything with Arabic writing. "Would that have included the Koran?" Judge Schroeder asked Hochul at today's hearing. "Nothing in Arabic was in fact seized," Hochul replied. Schroeder repeated the question, and Hochul admitted that the Koran would have been seized, "if the officers hadn't recognized what it was."

Today's apparent courtroom victory for Cambria does not mean that Judge Schroeder will grant any of the defense motions. And if he does, it is certain that the prosecution will appeal the decision--"all the way to
the Supreme Court if they can," according to Cambria.

Whatever the outcome of today's hearing, it will not come quickly: rulings in such hearings typically take two or three months. The defense has so far cost $60,000 for Kurtz alone; as for the taxpayer bill, it is well into the millions.

See also:

Kurtz view his prosecution as 'fanaticism'
The Buffalo News: May 18th, 2005
By Dan Herbeck

Artist says charges against him are political
Associated Press: May 17th, 2005
By Carolyn Thompson

CONTACT: media @ caedefensefund.org