Artist's Attorney Seeks Dismissal of Case

Carolyn Thompson, Associated Press

BUFFALO, N.Y. — The attorney for an artist accused of illegally obtaining bacteria for his artwork is asking a judge to throw the case out, saying authorities have sought to portray his client as a bioterrorist.

Attorney Paul Cambria, in court filings, argues the government has not established that University at Buffalo professor Steven Kurtz committed any crime.

The lawyer also challenges two search warrants used by the FBI to seize computer and laboratory equipment, and argues Kurtz was pressured into submitting to additional searches while in shock over the sudden death of his wife.It was the death of Zella Hope Kurtz, 45, on May 11 that touched off the federal investigation that led to Kurtz's indictment on mail and wire fraud charges.

On that day, Kurtz, 46, called 911 for help after finding that his wife was not breathing. Police officers, suspicious of laboratory equipment in the couple's home, summoned federal authorities, including the Joint Terrorism Task Force.

Kurtz described being detained by agents, frisked and kept from re-entering his home a day after his wife's death from heart failure.

"I told the agents that I needed to go to the funeral home and was advised that I could not go anywhere right away," he said in an affidavit. Later, he said, agents accompanied him to the funeral home and surrounded it until he left.

A month later, an indictment accused Kurtz, along with Robert Ferrell, a University of Pittsburgh professor, of misusing Ferrell's account with a biological supply company to order bacteria for Kurtz's artwork. The charges are unrelated to bioterrorism.

Each man faces 20 years in prison if convicted.

Cambria argues an FBI agent went out of his way to paint Kurtz as a terror suspect in an affidavit used to convince a judge to grant a search warrant.

The agent noted the presence of books, including some related to bioterrorism, an invitation to an art show that contained Arabic writing and Kurtz's work as a performance artist who uses biological materials in his work.

"These observations are drawn together in order to paint defendant Kurtz as a bio-terrorist," Cambria wrote.

The government has until Feb. 18 to respond to the filings. A hearing on the motions is scheduled March 1.

Kurtz, who has declined interview requests under the advice of his attorney, in court papers described the days immediately following his wife's death as agents accompanied him wherever he went, including the funeral home, airport, restaurant and hotel.

After picking up a friend from the airport, he said, the two were constantly watched.

"At the restaurant, agents sat in close proximity to us and appeared to keep us under surveillance during the course of the meal," he said.

Throughout the day, Kurtz said, agents asked him about the biological agents and equipment in his home.

Kurtz is a founding member of the Critical Art Ensemble, which has used biological materials in works meant to draw attention to political and social issues, such as genetically altered foods.

As a private individual, Kurtz was not eligible to order the bacteria allegedly obtained for him by Ferrell, authorities said.