Federal Judge Gives Go-ahead in Kurtz Case:

Motion to Dismiss Charges Called "Premature"

Dan Herbeck, Buffalo News

A criminal case that has upset many people in the art world will continue to move forward in federal court here.

In an opinion issued late Thursday, U.S. Magistrate Judge H. Kenneth Schroeder Jr. refused to recommend dismissal of charges against Steven J. Kurtz, a University at Buffalo art professor who was indicted by a federal grand jury in June 2004.

Kurtz, 47, is a founding member of the Critical Arts Ensemble, a group whose art exhibits often criticize the the federal government. His indictment touched off debate about artistic freedom and the government's efforts to tightly control the distribution of bacterial agents in the post-9/11 era.

It would be "premature" to dismiss the charges, Schroeder wrote. The judge also refused to recommend the suppression of evidence taken from Kurtz's Allentown home after his wife died there in May 2004.

"Even if it assumed . . . that the government will fall short in the required proof, a motion to dismiss the indictment must be considered as being premature and inappropriate in addressing that issue," Schroeder wrote.

The judge said he will schedule a hearing to determine whether some statements Kurtz made to Buffalo police should be suppressed.

Kurtz and Robert E. Ferrell, a human genetics researcher at the University of Pittsburgh, are charged with illegally obtaining bacterial agents from a laboratory in Virginia. They are charged with felony mail fraud and wire fraud.Kurtz's attorney, Paul J. Cambria Jr., had argued that no actual crime was committed. He said Kurtz obtained "harmless" forms of bacteria that he planned to use "in an art exhibit, to make a political point."

"We plan to appeal this ruling," Cambria said Thursday. "Judge Schroeder didn't say we were wrong. He said we would have to wait until trial to make that [dismissal] motion."

Kurtz had no immediate comment. Edmund J. Cardoni Jr., a friend and supporter, said he is certain the ruling will cause "shock and anger" in the art world. "I'm still baffled as to why the federal government is using its resources to pursue this case," said Cardoni, executive director of Hallwalls Contemporary Arts Center in Buffalo. "In my opinion, Steve is being specifically targeted because he is a dissenting voice."

Many artists in this country and Europe have protested the indictments, holding demonstrations in Buffalo and other cities. Some have accused federal agents of unfairly targeting Kurtz because they consider him a subversive. The government denies those allegations.

Artists have raised more than $200,000 for Kurtz's defense fund.

Schroeder's ruling is only considered an opinion at this point, and Cambria plans to ask a U.S. district judge, John T. Elfvin, for a ruling on the indictment and the evidence.

Assistant U.S. Attorney William J. Hochul Jr. said he is "gratified that the judge reached the conclusion that the police searches were valid and the indictment was proper."

While authorities never accused the two men of having any intent to commit terrorist acts, their case resulted from an investigation by the Joint Terrorism Task Force of Western New York, led by the FBI.

The case had its start on May 12, 2004, when Buffalo police were called to Kurtz's home after the death of his wife, Hope Kurtz.

Police said they called federal agents because they were suspicious about the death and because they found an "apparent biological laboratory." The home was temporarily sealed off by FBI agents wearing biohazard suits.

According to court papers, Kurtz told Buffalo police he had a "biodispersion device" that "could be used to disperse bacteria" in the home. Cambria is seeking to suppress that statement and others, which would make them inadmissible as trial evidence.

Last January, Cambria filed court papers asking for dismissal of the charges. He said federal agents took a harmless series of events and remarks and tried to portray Kurtz and Ferrell as "bioterrorists."

But Hochul said Thursday that the men are accused simply of fraud and not of any terrorism-related crime. He said Ferrell, who contended that the bacteria was for use in his own university's laboratory, purchased it under "false pretenses" for Kurtz.