At a hearing on December 18 in the Federal Courthouse in downtown Buffalo, US District Judge Richard Arcara postponed legal arguments in the more than three-and-a-half-year-old case against UB professor and internationally acclaimed artist Steve Kurtz because the prosecution lacked a key piece of evidence. The hearing, scheduled on account of a motion to dismiss the case, was open to the public. The courtroom was filled with reporters and many supporters of Kurtz.

Kurtz’s legal nightmare began when he was arrested in May 2004 after he called 911 due to the unexpected death of his wife, Hope. The police notified the FBI because they saw commonly used biological equipment, such as petri dishes and test tubes, in his house. Kurtz, one of the founders of the Critical Art Ensemble, an art group that explores the intersection of art and technology, was using this equipment in preparation for an installation at the Massachusetts Museum of Contemporary Art. In this exhibit, the group would present a mobile laboratory in which visitors could test supposedly organic food for genetically engineered content.

Suspicious of bioterrorism, the FBI arrested Kurtz and searched his house. It was quickly confirmed that Hope had died of natural causes. Weeks later the New York State Commissioner of Public Health determined that the biological materials posed no public health risks. Eventually, charges of bioterrorism were dropped completely. But instead of dropping the case, the prosecution decided to pursue it. Millions of tax dollars and approaching four years later, the prosecution is now charging Kurtz with mail and wire fraud for a transaction worth less than $300.

At the hearing prosecutor William Hochul argued that Kurtz had illegally obtained two kinds of generally harmless bacteria from his co-defendant, University of Pittsburgh professor and geneticist Robert Ferrell. According to Hochul, the University of Pittsburgh and ATCC (American Type Culture Collection), the lab from which the materials were purchased, are the “victims” of the case, because both Kurtz and Ferrell allegedly breached a contract between these two institutions, thus committing mail and wire fraud. But when Judge Arcara asked to see the contract, Hochul stated he did not have it. Kurtz’s lawyer, Paul Cambria, pointed out that this was a document he had also requested previously. Visibly annoyed, Arcara ordered Hochul to obtain the document and scheduled another hearing for January 18, at 9am.

Cambria argued that the case against Kurtz was based on inflated and vague charges that do not warrant a federal investigation. Neither the University of Pittsburgh nor ATCC has brought any complaint against Kurtz or Ferrell for what, even if true, would amount to a minor breach of contract.

The case against Kurtz raises many questions. Why is the government pursuing this case with such a vengeance, while at the same time failing to produce basic evidence? Why can’t a case of mail and wire fraud—if there is such a case—be resolved in a civil trial, which would not cost taxpayers millions of dollars? At this hearing, prosecutor Hochul completely failed to make a convincing argument and many who attended were mystified. Kurtz could face up to 20 years in prison if found guilty.

The January 18 hearing begins at 9am and is open to the public.