How artist Steve Kurtz became the target of weapons of mass distortion

You may not even see it coming. Chance events unfold in a particular sequence unexpectedly catapulting your life into mayhem. An untimely death, set against a backdrop of political paranoia, escalates into a nightmare populated by G-men in hazmat suits, shady characters, and overzealous law officials. This isn’t a crazy dream. You really are being detained, interrogated, falsely accused, and barred from your home. Your possessions are ransacked, your property carted off. Never mind grieving for your lost loved one, whose body has been seized by the government; you’ve entered a real-life twilight zone–a state of mind driven by post-9/11 suspicion, fear, and authority run amok–and you won’t be emerging anytime soon. This is a story about one Steve Kurtz, mild-mannered artist and professor, run through the wringer for reasons unclear, but it could just as easily be you or me.

Steve Kurtz. Photo by kc kratt.

My initial interest in Kurtz was sparked by kindred feelings as a fellow artist and educator. I didn’t know him personally, but we travel in the same circles. Perusing news accounts of his ordeal, I experienced an unexpected shiver. In retrospect, I imagine it was an actual manifestation of the chilling effect his case was intended to create. Years ago I purchased a harmless bacteria culture from a science company for an artist friend through the public school district I work for. The artist said the bacterium had an interesting property–it glows–but it’s only sold through educational supply catalogues. So with help from the office staff I ordered and paid for the bacteria, and when it arrived I gave it to my friend. Why the chill? My experience is almost identical to the circumstances surrounding Steve Kurtz’s case, the reason he was charged with mail and wire fraud, carrying a sentence of up to twenty years. The difference is that my exchange took place pre-9/11, before the country soiled its constitutional trousers over fear of terrorism. Still, the fact that Kurtz is the one who has been through the fight of his life and I’m the one writing his story seems a matter of pure chance.

Hope Kurtz.
Photo courtesy of Steve Kurtz.

At age fifty, Kurtz has been a professor of art at the University of Buffalo since he was lured here from Carnegie Mellon six years ago. “The UB dean’s office said, ‘tell us what [it is] you want to come here,'” recalls Kurtz. “I told them, and they said ‘come.'” With his customary jeans and tee shirt, toothy grin, and long straight graying blond hair, Kurtz’s look is more aging metalhead than academician. When I recently visited his two-story Allentown Victorian home, its ordinariness took me by surprise; media accounts had prepared me for an eccentric artist’s lair. Instead, I discovered a bright and stylish dwelling in which the only hint of Kurtz’s recent troubles is a tiny gag box of “I Am Not a Terrorist” peppermint candy sitting inconspicuously next to his flat-screen TV. Dark humor for dark times.

Indeed, Kurtz’s most striking characteristic is his ready smile which frequently signals hearty laughter. “Steve has a great sense of humor, and today he can laugh at some aspects of it, but this whole thing has been a nightmare for him,” says Lucia Sommer, spokesperson and coordinator of the defense fund that has been raising money to cover Kurtz’s legal fees. “Steve’s blood pressure was so out of control in the first year of the case, he was on the maximum amount of medication and still they couldn’t control it.” Today, Kurtz’s demeanor reflects optimism, if not wellbeing.

Kurtz and his late wife of twenty years, Hope Kurtz, were founding members of the internationally acclaimed Critical Art Ensemble (CAE), an innovative artist collective with specializations in computer graphics, web design, film/video, text and book art, photography, and performance. “Hope and I were so entwined,” he says. “We worked together on everything. We wrote our books together; we traveled together. Part of my identity and my entire adult memory was intermeshed with her.”

Kurtz’s personal Twilight Zone episode starts on May 10, 2004, when he returns home from a speaking engagement in Hamburg, Germany. On the advice of his lawyer, noted defense attorney Paul Cambria, Kurtz still cannot discuss the events that follow, but here’s what can be pieced together from various sources: Kurtz and his wife spend an uneventful evening watching TV before heading to bed. The next morning Kurtz discovers that his wife has stopped breathing. “Upon finding someone you love dead,” Kurtz relates, “the first feelings are shock and panic. … What do I do now?” What he does is call 911. What he doesn’t know as he dials is that Hope Kurtz’s death is just the start of his troubles.

Kurtz and a young participant in Critical Art Ensemble’s science-theater project GenTerra, London Museum of Natural History, 2003.
Kurtz and participants, St. Norbert Art and Cultural Center, Winnipeg, 2001.
Photo courtesy of Steve Kurtz/Critical Art Ensemble.

Suspicious minds
Paramedics arrive quickly, along with Buffalo police detective Chris Dates and his partners. When someone young dies unexpectedly, authorities automatically approach it with suspicion, and Hope Kurtz is forty-five with no history of illness. As emergency personnel attend to her, detectives warily eyeball aluminum foil covering Kurtz’s bedroom windows, a trick the late-sleeper has picked up from Elvis Presley, who foiled hotel windows to block the morning sun. To the detectives, primed to assume the worst, it appears sinister.

Detective Dates notices a small tabletop science lab off the upstairs bedroom, complete with petri dish bacteria cultures. It’s as if he’s spotted Bigfoot wearing a smoking jacket reading Dostoevsky. Unable to imagine a legitimate purpose for the setup, Dates subjects Kurtz to the third degree. “There used to be a time in this country where we were actually encouraged to have labs in our house,” says Kurtz, “and it was considered an important part of our education. Now it’s you know, why would you possibly have that in your house except because you’re a terrorist?” Indeed, the dubious notion that Kurtz is involved in terrorist activities will soon take center stage. When I see the lab later, it reminds me of the Gilbert chemistry sets Tommy Petrino and I played with as kids, only cooler. Kurtz tells Dates that he uses bacteria in his artwork, that it’s safe, a point he drives home by abruptly sticking his finger in a petri dish and licking it. In fact, the bacteria in Kurtz’s home are so harmless that they’re used in high school science classrooms. Tonawanda City biology teacher Anne Ruppert underscores their safety: “Unlike the chemical shipments we order for chemistry classes, it’s not necessary for us to account for [the bacteria cultures] and secure them when they arrive at the loading dock since there is no way that they can be used to harm another human being.”

The concept of bacteria as art medium has Dates flummoxed. Of course in today’s art world, where innovation is ubiquitous and urine practically qualifies as a traditional medium, bacteria don’t even rate on the oddness barometer. But explaining the vagaries of contemporary art to the uninformed is like stapling Jell-O to a tree, more so when you’re in shock. Exasperated, Kurtz describes how as a member of CAE he has performed throughout the world, employing scientific paraphernalia in his artwork. Nothing dispels Dates’s misgivings. Kurtz shows Dates an announcement card for an upcoming exhibition at the Massachusetts Museum of Contemporary Art (MASS MoCA) that is to include work by the CAE. The cover image by Lebanese-born artist Walid Raad contains some Arabic text, which later will be cited out of context in securing a search warrant for Kurtz’s premises. “Whatever the wildest scenario you can imagine is what they think is probable, rather than that Steve is a professor who specializes in the intersection of art and science,” says Sommer. The interrogation continues in the kitchen where it becomes apparent that Kurtz is under suspicion for murder by microbe. The grilling continues until late afternoon when Dates and company finally leave, with one last ominous warning: “The FBI is going to want to talk to you.”

Bring in the feds
In a perfect world, the FBI would protect Americans from bad guys, while respecting the rights of everyone else. Not in George W. Bush’s PATRIOT-Act-driven America. On his way to the funeral home the next day, Kurtz is met by a cadre of FBI agents who inform him that he’s being investigated for bioterrorism and can’t reenter his house. The cloak-and-dagger particulars of what follows are sketchy, and Kurtz isn’t yet talking. We know Kurtz isn’t read his Miranda rights, but is accompanied to the downtown Hyatt where he remains under FBI watch for the next twenty-two hours. Are sympathetic FBI agents thoughtfully accommodating the dispossessed terrorist suspect, or illegally detaining him? Personally, I find the benevolent caretaker concept hard to swallow. Later the FBI will claim Kurtz was free to leave, but during the twenty-two hours, they conveniently fail to mention it. With daily news stories of Guantanamo Bay, political detainees, and vanishing terrorist suspects, who, facing a room full of grim-faced agents, would figure they could walk out? Somewhere Efrem Zimbalist Jr. is blushing. Kurtz is grilled at length about his artwork and political views, taken to FBI headquarters, and interrogated again. With help from a friend, he manages to secure Cambria’s services, and within minutes of the lawyer’s arrival Kurtz is freed.

I keep wondering how Kurtz even functioned in the aftermath of his wife’s death. Wasn’t he consumed with grief? “I didn’t get the option to experience loss for a while.” Though he can’t elaborate, Kurtz offers an analogy: “You’re out in the jungle and your partner gets eaten by a lion, and there are lots of lions all around you; what are you going to be thinking about? …And these were very hungry lions.”

Stills from the MSNBC broadcast of Countdown, which originally aired May 29, 2004.

Kurtz considers the question further. “For so long after Hope’s death I’d watch The Ghost Whisperer. It’s about this woman who sees ghosts and they tell her what their problems are and she finds their relatives and they get to say goodbye and all the tensions that were left over from life are gone. And there’s the fantasy that such a thing could happen. I was going between mourning Hope and fighting for my life, which was the worst possible way to mourn someone, because you want to be completely emergent and spontaneous. So I had to schedule mourning. Friends would come over and I would just sit and cry for three hours each day, partly from exhaustion and partly from the loss of Hope.”

During Kurtz’s detention, his house plays a starring role in a Theater-of-the-Absurd neighborhood production as agents from the FBI, Joint Terrorism Task Force, Homeland Security, the Department of Defense, along with the Buffalo police and fire departments and the state marshall’s office arrive and cordon off the street with crime scene tape. Wearing hazardous material suits, and with guns drawn and media cameras rolling, the space-suited crime fighters enter the house they know is empty. Former next-door neighbor Joseph Maniaci recalls, “I remember looking out my window and seeing police cars circling around. Then in no time came a big media circus. There was a lot of confusion. People were saying, ‘Oh, he killed his wife,’ or ‘He’s a terrorist,’ but nobody really had a clue.”

Residents trade tales of being questioned by authorities. Are you afraid of Kurtz? Do you think you were harmed by his biological materials? One neighbor is allegedly asked if he believes his HIV infection was caused by Kurtz. “The neighbors on the street weren’t worried,” recalls Maniaci. “If there was anyone who was affected, I would have been the first, and I wasn’t the least bit worried. My upstairs neighbor just thought the whole thing was silly. As I got to know more about the case, it became clear he was a victim of the PATRIOT Act. I felt bad for him.” In response, Maniaci erects a lawn sign reading, “He’s not a terrorist, he’s my neighbor.”

Remarkably it takes nine days to search and inspect the house. “Their goal—what they announced—was that they were going to destroy the house and the contents in it,” says Kurtz. “If they could have gotten the public health officer to say that in some remote way this house could be a danger, it wouldn’t be here now.” Authorities rummage through Kurtz’s possessions, seizing his car, books, science equipment, anything that might remotely make a case that he’s a terrorist. They grab a half-completed book manuscript—months of work gone. Materials for several major artworks are removed. Bean, the family cat, is shut in the attic without food or water for an undetermined period. Even Hope Kurtz’s body is seized for analysis, though the county coroner has already ruled the cause of death as congestive cardiomyopathy—sudden congenital heart failure. “They took my passport; put me on the terrorist watch list. They took my house away. They took all my computers; I’ll never see them again. They froze my bank accounts; they basically made me homeless and penniless.” At the suggestion of his lawyer, Kurtz leaves town and stays with friends. New York State governor George Pataki commends the FBI for disrupting a major bioterrorism threat.

Stills from the MSNBC broadcast of Countdown, which originally aired May 29, 2004.

The probe deepens
Pursuing a bioterrorism conspiracy theory, federal prosecutors convene a grand jury naming Kurtz as a target. At the MASS MoCA opening reception—where CAE is exhibiting what’s left of their planned show—the FBI begins issuing subpoenas, eventually ten in all. A sense of shock descends upon the guests, with everyone wondering who will be next. Critical Art Ensemble’s publisher receives a subpoena requiring the names of all CAE book purchasers. “Fortunately,” says Sommer, “That was such a blatant violation of First Amendment rights [that] they were forced to deactivate [it].” Sommer reflects, “In a way it was lucky that the FBI chose to start issuing subpoenas on the opening night. Many friends and colleagues of CAE were there, and we immediately gathered together in the museum’s courtyard and formed the CAE Defense Fund …” In the weeks ahead, the FBI questions artists, curators, co-workers, friends, acquaintances, and college administrators—anyone who might have a secret to spill.

The Fed’s conspiracy theory promptly unravels like a cheap rug. The New York State public health commissioner announces that there is no public or environmental health or safety risk at Kurtz’s residence and that Hope Kurtz died of natural causes. The beleaguered artist is allowed to recover his wife’s body and return to his ransacked home—minus his confiscated possessions—where he’s greeted by trash bags full of Gatorade bottles, pizza boxes, and discarded hazmat suits. Friends help in the clean-up. Bean is released from the attic; deep scratches mark where the frightened cat tried to claw his way out. Meanwhile, most of those subpoenaed have refused to testify, citing the Fifth Amendment.

By now the egg running down the faces of the Department of Justice (DoJ) and head prosecutor, assistant U.S. attorney William Hochul, is getting thicker by the day. They have been trolling for a juicy conviction under the U.S. Biological Weapons Anti-Terrorism Act, and have come up with squat. But Hochul is resourceful. Buffalo attorney Rod Personius describes him as willing to take on difficult cases. “I’ve known Bill for a long time. I’ve found him to be an extremely capable prosecutor.” In an NPR interview, Personius discussed Hochul’s prosecution of the Lackawanna Six terrorist suspects: “They did a masterful job of taking advantage of the tenor of the times. These guys were arrested on the one-year anniversary of 9/11 and the government played that to the hilt.” Now with Kurtz, Hochul tosses around inflammatory rhetoric like Miss America throws kisses. Even after the harmless nature of the bacteria is known, he mentions “public safety concerns” and speaks incorrectly of “controlled bacteria.” In a gross misrepresentation, he claims the microorganisms are “used in biological warfare experiments,” and refers to them as “dangerous” and “biohazardous,” incorrectly asserting that one of them “can cause pneumonia.”

With truckloads of taxpayer money already spent, and the media watching, Hochul is in too deep to quit now. There’s got to be something to prosecute, but what? “Critical Art Ensemble always knew this could happen,” says Kurtz, “and we were prepared for it. [We said,] look, you’re probably going to get hassled by the authorities doing the things you do; be ready so you don’t get a bullshit charge dropped on you. Don’t take drugs. Don’t put stolen software on your computer. The kind of crimes most people do every day, you don’t do. I’d be in jail right now if I hadn’t followed the rules.”

Just how far is the FBI willing to go to get something on Kurtz? One day outside a motel where Kurtz is staying on business, he is confronted by a curious character who asks him if he has any drugs. Kurtz says no. The next evening the guy pops up again still looking for drugs, and when Kurtz declines again, the man launches into a contrived conversation about politics: “I hate Bush; don’t you?” Kurtz responds saying, “Well, I hate his policies.” The stranger doesn’t give up. “Man, I could kill the guy; I carry a Louisville slugger in my car and if I ever saw him, I’d … Don’t you want to kill the President?” Kurtz laughs thinking about it. “Was it an agent trying to get me to say I want to kill the president? I don’t know, but if it wasn’t, it sure was a weird coincidence.”

What’s art got to do with it?
Press pause here while I digress with an anecdote: Joe Maniaci tells of talking to a police officer in the aftermath of the assault on Kurtz’s house. “He was saying, ‘You know how these artists are,’ implying that artists are crazy or might have a certain tendency. I can’t recall his exact words, but he was suggesting that artists are the type that would murder their wife or be some kind of terrorist, almost like the Unabomber. I go, ‘yeah, right.’” The cop’s comments reflect a popular stereotype played out countless times in the media: the radical, wacky, eccentric artist, narcissistic slinger of paint. And here’s Kurtz, slinging bacteria, for crying out loud. Reckless wacko musta killed his wife.

So what’s the truth? Kurtz and the Critical Art Ensemble are known worldwide for their innovative public participation events, educational outreach, and academic research, having had their writings published in sixteen languages. They stage family-friendly performances in consultation with science experts to insure safety and scientific accuracy. Their work has been included in the trendsetting Whitney Biennial in NYC, and commissioned by major museums in London, Frankfurt, Paris, and Washington D.C. They are recipients of both the prestigious Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant and the Leonardo New Horizons Award for Innovation, among others. Work seized when Kurtz’s home was raided was commissioned by the Arts Catalyst, an art/science initiative with funding from the London Arts Council and created in consultation with scientists at the Harvard-Sussex Program. Hardly wacko territory.

Talk with Kurtz about CAE, and it’s apparent that his interests are rooted in contemporary art. “People can come to [our art] as a sociological experiment if they want, or they can see it as a kind of politically charged activist theater. If they want to consume us as an art display, all well and good. I think that’s at the heart of postmodern fluidity.”

On the job, however, Kurtz resembles Bill Nye the Science Guy more than controversial postmodernists like Damien Hirst or Cosimo Cavallaro. “The first thing we do is give visitors a personalized stake in what’s going on, so they want to get involved. … Take something like [the performance] GenTerra; we tell people, see this? We have a robotic arm and you can choose to use it to release transgenic bacteria in here, and you probably want to decide whether you want to be here or not. Now it’s completely safe; it’s all theater, but when people hear transgenic bacteria, all of a sudden things about risk assessment, things we want to talk to them about, become really interesting.”

The things Kurtz wants to talk about are hot-button topics like genetically altered foods, reproductive technologies, and biowarfare, all of which he makes clearly understandable to the average person. Not surprisingly, by demystifying matters that are near and dear to the concerns of government and big business, CAE often presents viewpoints that differ from those of the current administration. Of course the freedom to voice opposing views is a fundamental American right and a cornerstone of our democracy, but many observers in art and academic circles believe that Kurtz’s legal troubles originated because his art is politically—not physically—dangerous. His four-year criminal investigation has been called a persecution and likened to McCarthy-style intimidation aimed at inhibiting political dissension, creative and academic freedom, and the exchange of opposing ideas.

Ed Cardoni, director of Hallwalls Contemporary Art Center in Buffalo, has closely followed Kurtz’s case and believes that Hochul is misrepresenting Kurtz and his art. “Hochul also distorts—or simply doesn’t get—the nature of Steve’s work as an artist, which, like much contemporary art work, involves public performance and interactivity … Hochul continues to try to portray Steve as dangerous.”

Posters, documentation, and photography appearing in the exhibition.
Photography by Michael Mulley.

Don’t make a federal case out of it

In recent years the federal government has slowly expanded its jurisdiction into every area of American life and nothing appears too small anymore to be made into a federal case. Eventually the tenacious William Hochul comes up with a dubious hook on which to hang an indictment on Kurtz. On June 29, 2004, the artist and Robert Ferrell—head of the department of genetics at the University of Pittsburgh’s School of Public Health—are charged by a federal grand jury with mail and wire fraud because Ferrell purchased $256 dollars worth of harmless bacteria through the University of Pittsburgh and gave it to Kurtz to use in his art (cue aforementioned chill). Sharing materials like this is common among university professors, and neither the University of Pittsburgh nor the bacteria provider, American Type Culture Collection, has claimed damage. If ever there was a case worthy of being dropped for lack of public interest, this is it.

“They’re trying to implode criminal and civil law,” says Kurtz. “What they’re going after, what they’re trying to argue, is that if you use the mail for any reason and there’s a contract dispute—which is supposed to be civil law—they should be able to prosecute it for fraud as well.” What might a guilty verdict in Kurtz’s case mean to you and me? Say there’s a toy marked “Not for children under age eight” and you buy it by mail for a seven-year-old … see you in court, pal. “I’m the first person in the history of this country to ever be indicted for fraud for allegedly breaking a material transfer agreement.” The United States Attorney’s Manual published by the DoJ even specifically rules out mail and wire fraud prosecution in cases of “isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts.” So the DoJ is prosecuting a case prohibited by its own departmental guidelines.

Robert Ferrell—who has also undergone an exhausting investigation—is eventually forced by severe health problems, exacerbated by the stress of prosecution, to plead guilty to a misdemeanor. On February 11, 2008, he is sentenced to a year of unsupervised release and fined $500. Federal Judge Richard J. Arcara cites numerous “powerful” letters of support in handing Ferrell “the most lenient sentence I could give.” One such letter was likely that of prominent cancer researcher, Professor Patrick S. Moore, whose eloquent appeal to the Western New York DoJ is an impassioned plea for reason. Here are some excerpts:

“What are the consequences of this prosecution besides the unwise waste of taxpayer’s dollars? First … it cheapens and sullies all prosecutions performed by your office whether they are reasonable or not. Second, you’ve needlessly destroyed the career of an outstanding scientist [Ferrell] who has contributed tremendously toward societal good works. Third, your prosecution embarrasses American scientists in the eyes of our international colleagues. Let me be blunt: you are interfering with my work on finding the cause of a cancer because of your prosecution. Fourth, this prosecution inspires fear in scientists. [Hochul’s words are] the equivalent of yelling fire in the theatre of public opinion.”

On Monday, April 21, 2008 in an extremely rare move, Judge Arcara rules to dismiss the indictment against Kurtz stating that it is “insufficient on its face.” There is no appeal from the DoJ within the thirty-day time limit, bringing Kurtz’ protracted ordeal to an apparent end. But the chill deep in the bone still lingers.

Getting a bit chilly, isn’t it?
Deception. Fear mongering. Suppression. Persecution. Not things you typically associate with the word “justice.” The chill I feel—that any freedom-loving American should be feeling—extends beyond the world of art, through the science community, and into all of our lives. Still, through it all Kurtz has moved forward, making art, teaching, writing, and speaking publicly. Upstairs in his home there is a makeshift altar in honor of his late wife comprised of photos, personal items, religious icons, and related bric-a-brac. It feels like the calm in the eye of the storm. The artist in me searches for meaning in this act beyond the apparent, and I can’t help wonder if during his darkest moments this was Kurtz’s way of keeping Hope alive.

May 11, 2004
After waking up to discover his wife Hope Kurtz has died during the night, artist and UB art professor Steve Kurtz calls 911. Suspicious police spot bacteria cultures the artist uses in his artwork, triggering an extensive interrogation.May 12, 2004
FBI agents converge on Kurtz as he leaves his house. The artist is informed that he is under investigation for bioterrorism and cannot reenter his home. Many of Kurtz’s possessions are seized. The body of Hope Kurtz is also held.

May 19, 2004
New York State public health commissioner announces that Hope Kurtz died of natural causes and declares Kurtz’s residence safe.

May 29, 2004
MASS MoCA exhibition The Interventionists: Art in the Social Sphere opens with Kurtz participating as a member of Critical Art Ensemble (CAE). FBI arrives and begins issuing subpoenas, prompting the immediate formation of the CAE Defense Fund.

June 29, 2004
A federal grand jury charges Kurtz—not with bioterrorism, as listed on the original search warrant and subpoenas, but with mail and wire fraud—for receiving $256 worth of harmless bacteria. Also indicted is Robert Ferrell, the head of the Genetics Department at the University of Pittsburgh, who purchased the bacteria for Kurtz.

April 17, 2005
Art auction at Paula Cooper Gallery to benefit the CAE Defense Fund raises $167,700.

October 5, 2007
Director Lynn Hershman-Leeson’s documentary/drama Strange Culture, starring Thomas Jay Ryan, Tilda Swinton, and Peter Coyote, is released internationally.

November 17, 2007
Kurtz is released from pretrial supervision despite objections from DOJ prosecutor William Hochul. Until now, his travel has been restricted, he has been subject to random house searches and drug tests, and he has been required to report to a probation officer.

January 29, 2008
Kurtz’s lawyer Paul Cambria presents motions before Judge Arcara to dismiss all charges.

February 11, 2008
Forced by severe illness to plead guilty to a lesser charge, Robert Ferrell is sentenced to a year of unsupervised release and fined $500, “the most lenient sentence [Judge Richard J. Arcara] could give.”

April 21, 2008
Judge Arcara dismisses the government’s entire indictment as “insufficient on its face.”

May 9, 2008
A multitude of well-wishers attend as Kurtz celebrates his fiftieth birthday.

May 21, 2008
The Department of Justice does not appeal within the thirty-day time limit, bringing Kurtz’s protracted ordeal to a close.

Bruce Adams is an artist, educator, writer, former president of Hallwalls Contemporary Arts Center, skeptic, gardener, former magician, husband, and father. You can learn more about the Kurtz case on the CAE Defense Fund