January 29, 2008


Buffalo, NY — On Monday in Federal District Court, attorneys for SUNY Buffalo Professor Steven Kurtz presented motions to dismiss the charges against him. Defense attorney Paul Cambria was able to disassemble the government’s entire “case.”

The problems for the prosecution began when it was unable to produce the original material transfer agreement (MTA) on which it has based its entire allegation of “mail fraud” (charges now punishable under the USA PATRIOT Act by up to 20 years in prison). Cambria then went on to demonstrate that no crime was committed. For mail fraud to be prosecuted, there must be a clear representation by the parties involved of what cannot be done (in this case, according to the government, transferring material) which is then followed by willful misrepresentation to get around the rules by those intending to defraud. None of these conditions were demonstrated in the indictment against Dr. Kurtz. Cambria showed that even the ownership of the harmless bacteria samples—and thereby what could be done with them—was unknown, since the American Type Culture Collection MTA policy and the University of Pittsburgh purchase order contracts were in direct contradiction with one another. Steps to remedy this problem were taken in 2005 by Pitt and ATCC (one year after this case began) further showing the acknowledgement of these contradictions by the institutions involved.

U.S. Prosecutor William Hochul seemed flustered. While he did not admit that he had failed to provide adequate evidence, he could not provide the evidence. Judge Arcara repeatedly asked the prosecutor to explain how these requirements were fulfilled in the indictment, to which Hochul could only repeat that they were. After an hour, the frustrated judge gave up asking. Judge Arcara also asked Hochul if the cases he cited as precedents for the prosecution were in actuality to the benefit of the defense. Confirming the Judge’s concerns, Cambria went on to show that, indeed, the cases cited supported the argument of the defense rather than that of the prosecution.

The hearing ended with the judge granting Cambria’s request to submit a brief to the court summarizing his arguments – a request rarely granted in Judge Arcara’s court. All briefs are to be filed by March 7, and the judge’s ruling will follow within weeks of that date.

While it may have been clear to everyone in the courtroom that no crime was committed by Drs. Kurtz or Ferrell, and that this action by the Justice Department is a flagrant attempt to implode civil and criminal law, it is unlikely that a dismissal will be forthcoming. Grand Jury indictments are rarely dismissed, no matter how thin. While there is some room for hope for a dismissal that did not previously exist, hopes should not be built too high.

Should Judge Arcara rule in favor of the government, a trial will likely be scheduled for Summer 2008. Should the judge rule to dismiss the case, a potentially years-long appeal process by the prosecution will begin.