Supervisor requests release, prosecution attempts to block
Buffalo, NY – Artist and University at Buffalo professor Steven Kurtz has been released from pretrial supervision despite strong objections from US Department of Justice prosecutor William Hochul.
Kurtz’s case has not yet gone to trial and motions for its dismissal are pending, but until last week the artist was subject to random house searches and drug tests, was limited in his ability to travel, and had to report regularly to a probation officer. (See "Summary of Case" below for background.)
Last week, arguing that there was no hint of criminality or risk of flight, Zenaida Piotrowicz, Kurtz’s pretrial supervisor, motioned a federal court to release Kurtz from supervision. Despite vigorous and exceptional objections by Department of Justice prosecutor Hochul, Magistrate Judge Kenneth Schroeder agreed there was no reason not to release Kurtz on his own recognizance to await trial.
Kurtz’s Defense Committee believes that the prosecutor’s unusual and fierce opposition to the pretrial supervisor’s motion to release Kurtz from probation is yet another example of the extreme prejudice with which the Department of Justice has approached the case. The Defense Committee believes the case in fact represents a deliberate attempt to intimidate and silence artists and scholars critical of US government policy, and that the DOJ’s extreme prejudice is further suggested by the following facts:
- This is the first time the Department of Justice has ever tried to prosecute the alleged breaking of a material transfer agreement as federal mail fraud. In the prosecution’s radical interpretation of mail fraud law, incorrectly filling in a warranty card would be grounds for federal criminal prosecution. Last July, at a hearing on the case, Magistrate Judge Kenneth Schroeder noted that such an interpretation would be akin to opening a "Pandora’s box."
- The Department of Justice is completely outside its own guidelines for prosecution on this case ("9-43.100 Prosecution Policy Relating to Mail Fraud and Wire Fraud"). According to these guidelines, an alleged infraction involving $256 worth of harmless bacteria should be left to the relevant state agencies, i.e. those of New York and Pennsylvania; these, however, have declined to take action in the case. (The alleged victims of the "fraud," American Type Culture Collection and the University of Pittsburgh, have likewise declined to take any action, either criminal or civil.)
- The substances Kurtz allegedly received are harmless and are not regulated by any law or government agency (EPA, FDA, etc.), as prosecutor Hochul was forced to admit at a hearing last July. Furthermore, they are legal for any citizen to buy and possess. Their intended use was very obviously in bonafide creative work and research by a well-known artist and university professor with a long and institutionally validated record.
Kurtz is currently awaiting a ruling on motions to dismiss the entire case filed by his attorney Paul Cambria.
SUMMARY OF CASE
Almost eighteen months have passed since Kurtz awoke to find that his wife of twenty years had died of heart failure. He called the police, who, upon noticing lab equipment that Kurtz used in his artwork and teaching, contacted the FBI. The FBI detained Kurtz as a potential "bioterrorist" and initiated an investigation involving the Joint Terrorism Task Force, the Department of Homeland Security, and numerous other federal and international law enforcement agencies, at an estimated cost to taxpayers in the millions of dollars.
Kurtz was finally indicted not for bioterrorism, but for "mail and wire fraud" – charges traditionally brought in weak cases when no other charges will stick. (These charges still carry a possible sentence of twenty years in prison.)