A Prosecutor's Holy Grail: Another Scalp

05/25/2011 12:30 pm ET
  • William Fisher Formerly served State Department and Agency for International Development

Ever wonder why prosecutors are so totally relentless in pursuing cases - even when they know they are baseless?

There are lots of reasons: Career advancement. Face-saving. Ego - another notch in a lawyer's belt. Another scalp to mount on the office wall.

Whatever the reason, for a government lawyer, getting a conviction is like finding the Holy Grail.

The mythical Grail, you will remember, is that magical platter or dish that symbolizes otherworldly power or tests the hero's worth. It can generate a never-ending supply of food. Or raise the dead. Or decide who the next king should be.

This is the story of the four-year-long search for the Grail by U.S. attorneys in upstate New York.

The search began in May of 2004, when an avant-garde artist named Steven Kurtz, a professor of Visual Studies at the University of Buffalo discovered that his wife of twenty years had died in her sleep.

Dr. Kurtz, a co-founder of the oft-awarded Critical Art Ensemble, was preparing for an exhibition of an art installation at MASS MoCA, a museum in North Adams, Massachusetts.

When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures. The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the UK-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Program.

The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programs and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.

Local police called the Federal Bureau of Investigation (FBI). While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized. Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, Marching Plague: Germ Warfare and Global Public Health (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.

The then Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. Attorney in Buffalo, Michael A. Battle -- the lawyer who was later to become the Department of Justice employee who notified eight U.S. Attorneys that they were being fired -- praised the work of the Buffalo Joint Terrorism Task Force.

But after a several-month-long investigation, the FBI and the Department of Homeland Security failed to provide any evidence of "bioterrorism" On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz's house and that his wife had died of heart failure.

Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. It claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC). Neither the University nor ATCC had brought any complaint, and observers pointed out that scientists routinely share nonhazardous cultures.

But the Department of Justice now claimed that this alleged contract discrepancy constituted federal mail and wire fraud. And because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.

Eventually Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.

But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defense fund, and Kurtz continued to teach at the University of Buffalo.

When the case finally arrived in a courtroom last month, Federal Judge Richard J. Arcara ruled that the government's evidence was insufficient and dismissed the indictment.

Still frustrated by the elusive Grail, the Feds are now considering whether they will file an appeal.

If you think the Kurtz case is some kind of aberration, consider the so-called Liberty City Seven.

Last year, the FBI arrested seven Miami men for plotting to blow up the Sears Tower in Chicago and several buildings in Miami. The seven were unemployed, semi-employed and sometimes homeless, and seemed the most unlikely subjects imaginable to charge as terrorists.

But the then U.S. Attorney General, Alberto Gonzales, declared, "these men were prepared to wage a full ground war against the U.S." He said the men were "as dangerous as al Qaeda." When indictments were handed down, the FBI said it was "yet another important victory in the war on terrorism."

Another top Justice Department official, however, described the alleged terrorist plot as more "aspirational than operational." And police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot.

In court, prosecutor Richard Gregorie told the jury this case was about jihad, saying the seven men had the "sole purpose of creating a holy war against the United States."

The suspects, dubbed the Liberty City Seven for the impoverished section of Miami where they lived, were charged after a lengthy investigation in which an FBI informant posed as an al-Qaida member and led the seven in a pledge to the terrorist group and Osama bin Laden.

After a long trial and nine days of deliberation, the jury found the alleged ringleader of the seven not guilty on all four terror conspiracy counts and said they could not reach a verdict on the other six. The judge declared a mistrial.

So then came the second trial of the renamed Liberty City Six. And it ended the same way - jurors could not agree and the judge declared a mistrial.

End of story?

Not so fast. This week a patently over-zealous Miami federal prosecutor announced he would put on the six defendants on trial for a third time.

As the Washington Post pointed out in an editorial, "It is not unusual for prosecutors to retry a case once if a jury deadlocks. But a second retrial is exceedingly rare and is usually reserved for murder cases. A third trial on terrorism-related charges appears to be unprecedented and raises serious questions about whether prosecutors are more concerned with saving face
than seeking justice."

Saving face indeed! And hoping against hope they will finally find the Holy Grail. Which will legitimate the hero's worth or raise the dead or decide who the next king should be.