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May 21, 2005


-- by Thomas Leavitt

May 17, 2005

Judge calls proposal "Pandora's Box"; defense calls for dismissal

Today in Buffalo, Judge Kenneth Schroeder heard motions to dismiss a
federal criminal case against artist Steven Kurtz. Professor Kurtz was
charged with mail and wire fraud last summer after prosecutors found
nothing to support their original allegations of bioterrorism. (Please
see http://www.caedefensefund.org/faq.html for an overview of the case.)

In today's hearing, defense attorney Paul Cambria argued that a
dangerous precedent would be set by "exalting" into a federal criminal
case of wire and mail fraud what is at best a minor, civil contract
issue--the purchase of the bacterium Serratia marcescens by scientist
Robert Ferrell for use by Kurtz in his artwork.

Judge Schroeder seemed to agree, asking Federal Assistant District
Attorney William Hochul whether an underaged youth who uses the
internet to purchase alcohol across state lines, for example, should be
subject to federal wire fraud charges. "Yes," Hochul answered after
some hedging, and Schroeder chuckled. "Wow, that really opens up a
Pandora's Box, wouldn't you say?" he asked Hochul.

Schroeder also asked Hochul whether there is any federal regulation at
all (OSHA, EPA, or other) concerning Serratia. Hochul admitted there
wasn't. (The alleged danger of Serratia forms the basis of the
government's argument for making this a criminal case, rather than
simply allowing the bacterium's provider to pursue civil remedies if it
feels it was wronged.)

Cambria further argued that the FBI intentionally misled a judge into
issuing the original search warrant. That judge was never told of
Kurtz's lengthy, credible and complete explanation of what the seized
bacterial substances were being used for, nor of the fact that Kurtz
tasted Serratia in front of an officer to prove it was harmless. Also,
the judge was told of Kurtz's possession of a photograph of an exploded
car with Arabic writing beside it, but not of the photograph's context:
an invitation to an important museum art show. The photograph, by
artists the Atlas Group, was one of several exhibited pieces pictured
on the invitation.

Because of the photo, the judge issued a warrant calling for the
seizure of anything with Arabic writing. "Would that have included the
Koran?" Judge Schroeder asked Hochul at today's hearing. "Nothing in
Arabic was in fact seized," Hochul replied. Schroeder repeated the
question, and Hochul admitted that the Koran would have been seized,
"if the officers hadn't recognized what it was."

Today's apparent courtroom victory for Cambria does not mean that Judge
Schroeder will grant any of the defense motions. And if he does, it is
certain that the prosecution will appeal the decision--"all the way to
the Supreme Court if they can," according to Cambria.

Whatever the outcome of today's hearing, it will not come quickly:
rulings in such hearings typically take two or three months. The
defense has so far cost $60,000 for Kurtz alone; as for the taxpayer
bill, it is well into the millions.

See also

CONTACT: media@caedefensefund.org

For more information on the case, or to make a donation to the CAE
Defense Fund, please visit http://www.caedefensefund.org/

Posted by Thomas Leavitt at May 21, 2005 6:42 PM

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My first day of law school, the Contracts professor asked the class if a person can be prosecuted for breach of contract. Surprisingly, a student raised her hand and answered yes. The professor began to yell, "Maybe in Nazi Germany. Maybe in Soviet Russia! Not in the United States." My contracts professor is now deceased, and apparently his views of the law are dying as well.

Posted by: Ellen at May 22, 2005 9:18 AM

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