Over the years, defense attorney Paul Cambria Jr. has taken on such high-profile clients as Hustler magazine publisher Larry Flynt and musician Marilyn Manson. His latest client, artist and former Florida resident Steve Kurtz, is nowhere near as well known — but his case could have far-reaching implications for anyone involved in artistic or scientific research.The case involves an arts group called the Critical Art Ensemble (CAE), which was formed by a handful of students at Florida State University during the 1980s. The artists, who included then-humanities student Kurtz, sought to link art and technology through infusions of radical politics and critical theory. Over the years their works have gained acclaim, especially abroad, as CAE members explored the political and social dimensions of the scientific process and held companies accountable for bad science and bogus labeling.
This spring, an installation by Kurtz — now a professor at the State University of New York's Buffalo campus — was slated to be part of The Interventionists: Art in the Social Sphere, a show at the prestigious Massachusetts Museum of Contemporary Art (MASS MoCA) in North Adams. For the piece, which was titled "Free Range Grains," Kurtz planned to do a series of science-based tests to see whether a number of organic-labeled products were free of pesticides and other non- organic material.
Then, in a tragic turn of events, Kurtz's 45-year-old wife died of heart failure just weeks before the exhibit, and emergency crews who came to her aid became alarmed by Kurtz's in-house studio and laboratory. According to Cambria, Kurtz was arrested and a Hazmat team was flown from Virginia to Buffalo. Art in America magazine reported that the Bureau temporarily confiscated Kurtz's house, his computer equipment, his cat, even his wife's body. After two days of FBI inspections, no wrongdoing by Kurtz was uncovered — including no links to bioterrorism, the reason for the search warrant, Cambria said.
However, Kurtz was charged with four counts of mail and wire fraud, because the U.S. government claims that bacteria found in his home were wrongly obtained from a University of Pittsburgh genetics professor.
Robert Ferrell, the professor, received the harmless bacteria from the nonprofit American Type Culture Collection, and then passed it along to Kurtz for an art project. That was illegal, according to the indictment, because Kurtz, a non-scientist, was not sanctioned as a recipient of the bacteria. Both Kurtz and Ferrell could face up to 20 years in prison for each of the four counts. The case is scheduled to go before the Western District Court of New York in February.
Cambria said that while the government may argue that Kurtz did not go through the proper channels for obtaining the bacteria (serratia marcescens and bacillus atrophaeus) for art, the case should be played out in the civil court, not federal.
"Sue him, but don't make him a criminal," Cambria said. "I think the government is stretching here, and I'm hoping the district court will see through this."
Nato Thompson, the associate curator for MASS MoCA, said he has questioned, like others, whether the fraud charges were part of a governmental "saving face" after a botched FBI search. Tensions may have been high since the FBI identified suspected terrorists in nearby Lackawanna in 2002. "One can only guess," said Thompson of the reasons for the charges. Still, the outcome of a final court ruling could affect how art intersects with technology and science, he said. He added that the ruling could also affect amateur scientists and high school hobbyists.
"Anyone who's operating with a marginal level of science is alarmed at this," he said.
Area scientists point out that the case raises the sensitive issue of biological materials and their possession, and the recent heightened importance the government has placed on monitoring such materials, particularly when dangerous.
Katherine M. Walstrom, a biochemistry professor at New College in Sarasota, said that while she questioned the wisdom of bringing even harmless bacteria into a public place, she liked the idea of bridging science and the public via art. But the possession of biological material has been a complicated issue even among scientists, Walstrom said, especially since the federal government has recently asked laboratories to report bacterial possessions. In her department, Walstrom said there was a lively discussion over whether even old samples of non-growing bacteria retained on slides should be reported.
"I think we finally decided to list them because we had them," she said. Still, while Homeland Security has called for careful reporting, Walstrom said the charges levied against Kurtz for wrongly obtaining innocuous bacteria were "insane."
"It sounds like it was maybe not a smart idea, but it's not something to throw a guy in prison for," she said.
According to Gil Lazier, the former FSU theater dean and a current resident of Sarasota, such a prosecution could also have historic import. It's one thing for government and artists to butt heads over funding issues, as with 1998's "NEA-4" controversy, in which four artists unsuccessfully sued the National Endowment of the Arts by arguing that "decency" standards attached to federal art funding violated the First Amendment. But a direct federal intervention into an art project would be reminiscent of politics a half-century ago, during the governmentally repressive McCarthy era.
"I haven't heard of anything as direct as that since the 1950s," he said.
Assistant U.S. Attorney William Hochul, who represents the case on behalf of the U.S. government, said those judging the case through an artistic lens miss the point. The FBI is charged with investigating mail and wire fraud, he said, and nowhere does the indictment mention an art project or the government's review of art. It was the 23-person grand jury that decided evidence of fraud existed and that a jury should determine whether Kurtz and Ferrell are guilty of the charges. A jury of peers will decide if the professors' actions were criminal, Hochul said, not Cambria or others.
"The system does not rely on criminal defense lawyers to determine what is criminal and what is not," he said.
Nevertheless, the government's failure within the indictment to address the bacteria's intended use shows a woeful shortsightedness, said Ricardo Dominguez, visual art professor at the University of California in San Diego and a former member of CAE. Dominguez, who knew Kurtz at FSU, said the group's work against "biocapitalism" is more than an academic exercise.
Much of CAE's involvement in science was triggered by specific instances in which science went awry. In fact, many of CAE's founding members were part of the fledgling ACT UP-Tallahassee, whose members grew concerned about evidence that AZT, a drug used to treat HIV and AIDS, was causing considerable harm. Dominguez asserts that the FBI showed its bias by not asking Kurtz the reason for his bacteria use, and further suggests that the charges of fraud are meant as a blunt warning to artists to avoid making similar work.
"To push it to that kind of level is to misunderstand the reason for the work," he said, "and it's a good way to quickly let people know than an artist can be under this deep chill."
allyson.gonzalez@weeklyplanet.com
This article appears in Jan 5-11, 2005.