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Colleague Testifies in Case of Artist's Germ Use
By DAVID STABA
Published: April 20, 2005

BUFFALO, April 19 - Nearly a year after the death of an art professor's wife led to a federal investigation into the use of bacterial agents in his artwork, a grand jury investigation into the case continues.

Steven Kurtz, an artist and assistant professor at the State University of New York at Buffalo, was charged with illegally obtaining bacterial agents after lab equipment containing bacteria was found in his home last May.

The police found the equipment after Mr. Kurtz called 911 for medical assistance for his wife, who had died suddenly of heart failure. An autopsy found that her death was unrelated to the presence of the bacteria.

A colleague of Mr. Kurtz, Steven B. Barnes, an artist based in Tallahassee, Fla., testified before the grand jury here on Tuesday in response to a subpoena. He said afterward, "It seems apparent that the prosecution is still trying to pursue some kind of biological weapons charge."

Mr. Barnes, who with Mr. Kurtz is a member of the Critical Art Ensemble, a troupe of artists who produce multimedia work examining such issues as the role of technology in modern life, would not describe the questions he was asked by prosecutors. He said the subpoena indicated that the grand jury was considering additional charges under the Biological Weapons Antiterrorism Act of 1989, which was expanded by the USA Patriot Act passed in the aftermath of the terrorist attacks of Sept. 11, 2001.

An assistant United States attorney, William J. Hochul Jr., declined to say whether Mr. Barnes testified, citing Justice Department policy, but said such proceedings would not be unusual, even though pretrial hearings on the mail and wire fraud charges were already under way.

"A grand jury's investigation continues until all possible evidence is explored," Mr. Hochul said.

Mr. Kurtz and Robert Ferrell, a professor of human genetics at the University of Pittsburgh, face wire and mail fraud charges carrying potential sentences of up to 20 years in prison, a $250,000 fine, or both. Mr. Ferrell is accused of using his position as a researcher to procure the bacteria fraudulently. Prosecutors say Mr. Kurtz was unable to buy them on his own.

In a motion asking Judge John T. Elfvin to dismiss the charges, a defense lawyer, Paul J. Cambria, maintained that the bacteria posed no threat and that how they were obtained did not warrant federal prosecution. Mr. Cambria said the bacteria were meant for use in an exhibit.

The indictment said the two men frequently acquired the bacterial agents Serratia marcescens and Bacillus atrophaeus.

Mr. Cambria and members of the Critical Art Ensemble say they believe prosecutors singled out Mr. Kurtz because he was critical of the government in his art and writing. The group has set up a defense fund and Web site (caedefensefund.org) and sponsored a benefit auction on Sunday at the Paula Cooper Gallery in Manhattan to help defray Mr. Kurtz's legal expenses.

Mr. Hochul said Mr. Kurtz's political views had no bearing on the charges.