June 11, 2008



Dr. Steven J. Kurtz: (716) 812-2968 

Lucia Sommer, CAE Defense Fund: (716) 359-3061 

Edmund Cardoni, Hallwalls Contemporary Arts Center: (716) 854-1694



Department of Justice Fails to Appeal Dismissal 

Kurtz Speaks about Four-Year Ordeal


Buffalo, NY–Dr. Steven Kurtz, a Professor of Visual Studies at SUNY at

Buffalo and cofounder of the award-winning art and theater group Critical

Art Ensemble, 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 US Department

of Justice had thirty 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 US Attorney

Terrance P. Flynn, the DoJ will not appeal 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.




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

twenty-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:




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. However, the following 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  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 twenty 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




For more information and extensive documentation, including the Judge’s

dismissal, please visit:


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