BUFFALO, N.Y. -- The closely watched case against an unconventional artist accused of improperly obtaining bacteria for his work will go forward after a magistrate judge declined a defense request to throw it out.
U.S. Magistrate Judge Kenneth Schroeder wrote it would be premature to dismiss mail and wire fraud charges against Steven Kurtz based on his attorney's assertion that the government lacked the evidence to prove them.
A June 2004 indictment accused Kurtz, along with University of Pittsburgh geneticist Robert Ferrell, of misusing Ferrell's account with a biological supply company to order bacteria for Kurtz, a University at Buffalo art professor and founding member of Critical Art Ensemble.
The prosecution of Kurtz, 47, has sparked protests in Buffalo, San Francisco and Vienna, with Kurtz supporters accusing the government of trying to intimidate artists and others who are critical of U.S. government policy. Critical Art Ensemble's work has touched on issues such as genetically modified food and cloning.
Assistant U.S. Attorney William Hochul has said the charges are based solely on federal law which prohibits people from obtaining money or property by fraud.
In his decision Thursday, the judge also refused to recommend that items seized during searches of Kurtz's home be kept out of his trial, but said he would hold a hearing to determine whether statements Kurtz made to investigators should be allowed.
Kurtz did not immediately respond to a request for comment Friday.
The case began when Kurtz called 911 May 11, 2004, to report the death of his wife, Hope, in their Buffalo home. Police thought the death, later attributed to heart failure, suspicious and called federal agents after noticing bacteria cultures growing in labeled petri dishes, books a police officer said "related to bioterrorism" and a device Kurtz told them could be used to disperse bacteria, according to court documents.
Kurtz told police he was a member of Critical Art Ensemble and was preparing for an exhibit in Massachusetts, the court papers said.
The judge rejected defense attorney Paul Cambria's argument that items taken from Kurtz's house should be suppressed because Kurtz was reeling from the unexpected death of his wife when he spoke with investigators and allowed them to search his home.
The judge said a hearing on Kurtz's statements to police would be scheduled in the next two months.
