Artist Likely To Plead Not Guilty Over Bacteria

James Adams, Toronto Globe and Mail

TORONTO — A Buffalo artist and university professor is expected to plead not guilty today to charges that he illegally obtained biological materials that U.S. federal authorities continue to investigate as having possible bioterror potential.The bizarre case of Steven Kurtz, 46, has attracted international attention in recent weeks, pitting U.S. prosecutors and FBI agents who say they're only protecting public safety in the wake of Sept. 11, and the arts community that claims the federal government is indiscriminately and mistakenly attacking artistic expression and freedom of speech.

Kurtz was indicted last week by a New York grand jury on two counts of mail fraud and two counts of wire fraud after two bacterial agents — serratia marcescens and bacillus atrophaeus — were found in May at his home laboratory in Buffalo, where Kurtz is an associate art professor at the city's state university. Also indicted was Robert Ferrell, 60, chair of the human genetics department at the University of Pittsburgh and the man the grand jury alleges served as the intermediary between Kurtz and the bacteria supplier, American Type Culture Collection, headquartered near Washington.

Kurtz likely will plead not guilty at his arraignment today before U.S. Magistrate Judge Kenneth Schroeder in Buffalo, according to Claire Pentecost, a spokeswoman for Kurtz and an associate professor at the School of the Art Institute of Chicago. Also to be determined at the hearing will be bail possibilities and travel restrictions, if any.

"Kurtz will not be talking to the press for the foreseeable future," Pentecost said this week. "The grand jury investigation is still under way and as far as we know, there will be a trial, so his lawyer has advised him not to speak publicly."

Kurtz's troubles began May 11 after he awoke to find that his wife of 20 years, Hope Kurtz, 45, had stopped breathing. Paramedics called to the Kurtz home noticed laboratory equipment that Kurtz, a member of a collective called the Critical Art Ensemble, said he used for art works that "address the politics of biotechnology." (The paramedics failed to revive Kurtz's wife. It is believed she died of heart failure.) Soon FBI agents were questioning Kurtz and rummaging through his home wearing anti-hazardous material suits, bagging biological material and laboratory equipment, computers, books and scientific documents.

A 23-member grand jury was quickly empanelled to investigate the matter. For seven weeks, they subpoenaed, then interviewed dozens of "witnesses," including some of Kurtz's associates at the State University of New York, Buffalo, in closed hearings.

Initially the grand jury's focus was on the bioterrorism potential of Kurtz's activities but after tests for bubonic plague, ricin and anthrax in the Kurtz home turned up negative, attention shifted to how Kurtz obtained some of his materials. In their 15-page indictment of June 29, federal prosecutors said Robert Ferrell used his affiliation with the University of Pittsburgh to order samples of serratia marcescens and bacillus atrophaeus for a project Kurtz was developing. Dr. Ferrell got these materials fraudulently, they allege, because he implied they would be used in a classroom. The indictment also says Kurtz was not a "registered customer" of the company supplying the materials.

Paul Cambria, Kurtz's lawyer and a man whose previous clients have included shock rocker Marilyn Manson and Hustler publisher Larry Flynt, has claimed that the federal government's response has been one of "complete overreaction."

It's clear that Kurtz intended to use the biological materials for "peaceful purposes," as permitted by U.S. law, and without "criminal intent. The intent was to educate and enlighten." Moreover, since the indictment makes no reference to bioterrorism and instead refers to fraud statutes "normally used against those defrauding others of money or property, as in telemarketing schemes," no grand jury should be involved. "If the University of Pittsburgh feels that there was a contract breach, then their remedy is to sue Steve for $256 [U.S.] in civil court," Cambria said.

In the meantime, Kurtz's supporters argue that the two bacterial cultures the artist obtained from Ferrell are by and large harmless and, according to a report in The Buffalo News, "no more dangerous than those commonly used in junior-high-school science experiments."