Dr. David Shevin photograph

A PARDON FOR FERRELL

January, 2009

As the days of the oh-so-endlessly-long Bush presidency dwindle, a lot of attention goes to the pardons that he grants on his way out the door. I can think of no one more worthy of a pardon than Dr. Robert Ferrell of Pittsburgh. To understand Ferrell’s case, it is necessary to look first at the more publicized case of Steve Kurtz, of Buffalo. It took four years of endless harassment, but Steve Kurtz is finally free of criminal charges. The most recent news on Kurtz’s case is that the Department of Justice has let deadlines lapse on appealing the last judicial rulings to drop all charges against him. This is only just. It would have been more just if Professor Kurtz had simply been left alone.

Kurtz’s case makes as illustrative a measure as we have seen of how far civil liberties have eroded since the Patriot Act took effect. His nightmare began in May 2004. Nothing in his life would have made him remotely a “person of interest”. He was a professor in the Art Department at the University of Buffalo, a founding member of a successful collaborative called the Critical Art Ensemble, which had an impressive and acclaimed series of installations on social and cultural concerns. He was at work on materials for an installation at the Massachusetts Museum of Modern Art, developing displays on the theme of genetically modified foods, when tragedy struck.

Kurtz became a widower that May. His wife, Hope Kurtz, died unexpectedly in her sleep of heart failure. She departed tragically young, in her forties. Kurtz, of course, called in the police … as police agencies recently had their heads filled with anti-terrorist alarms and widely broadened powers. The police found not only the body of Hope when they entered the Kurtz residence. They found materials essential to the artist’s work: some lab equipment, some cultures growing in Petri dishes, and an art flier decorated with Arabic script. The police sounded the alarm far and wide.

Every conceivable local and federal agency was immediately in on the act. “Bioterrorist” scares hit the media. Hope’s body was sent to Quantaco, Virginia for testing. Agents from AFT, DEA and the Department of Homeland Security overran Kurtz’s house, seizing art and equipment and barring him from his own home. Emboldened by growing bacilli among the evidence, the hunt was on.

It took less than a day to establish that the materials being grown with the lab equipment were absolutely harmless. Nevertheless, the attitude of the government was one of in for a penny, in for a pound. Given the resources already committed to the Kurtz investigation, charges began to accumulate and proliferate. What opened the door to charges was the use of the mails in preparation for the Massachusetts exhibit; Kurtz was charged with mail fraud and wire fraud. These charges, if the maximum sentence were imposed, would have nailed Kurtz with twenty years of jail time and $100,000 in fines.

A mail conspiracy, of course, involved more than one person. Here is where Dr. Robert Ferrell, Professor of Human Genetics at the University of Pittsburgh Graduate School of Public Health, enters the story. His case is equally worthy of attention. Ferrell, a researcher and teacher with endless credentials, had been working as an advisor to the Critical Art Ensemble as they pursued and researched genetically modified foods. He shared Kurtz’s concerns about the unaccountability of corporations as they tinkered with the national food supply with little regard for public safety. Genetically modified foods, in his view, represented a national experiment with all of us as the test subjects.

His role for Kurtz was much like the role he had for students. He adjudged the methodology for experimentation, and supplied materials. Ferrell, an older academic, a survivor of a lymphoma and a melanoma awaiting a stem cell transplant, was cast into the same media circus as Kurtz. Ferell was named in wire and mail fraud criminal suits, and he did not respond well to the pressure. Following the charges, he suffered multiple strokes which impaired his ability to speak. To alleviate the pressures of the criminal indictments, Ferrell decided to enter a guilty plea on lesser charges, and to have the fraud charges dropped. Ferrell’s wife and daughter spoke out on the scientist’s behalf as his plea was entered. Diane Raeke Ferrell, Robert’s wife, called the government case a “persecution rather than a prosecution”. His daughter Gentry maintained, “I remain unable to wrap my mind around the absurdity of the government's pursuit of this case and I am saddened that it has been dragged out to the point where my dad opted to settle from pure exhaustion.”

A disconcerting element in the prosecution of each of these professors is that it raises the bar for silencing academic speech. The academy has long had its tools for quieting professors who challenge the orthodoxy. Those with dissenting ideas might be denied promotion or tenure, might find their contracts, grants, or jobs revoked, might be saddled with undesirable or impossible teaching and committee assignments. In addition to these administrative control devices, professors are regularly scrutinized, reviewed and evaluated by formal course and peer review guidelines. Both political and social professor ratings sites and blogs proliferate on the internet. The innovation of the Kurtz case was to introduce criminal charges to the patrol of academic freedom, and the government agencies were relentless.

The prosecutions of Kurtz never let up until April of 2008, when a judge threw out the last of the mail fraud charges pending against him. Even then, the professor did not know whether the Justice Department would appeal the judge’s ruling until the appeals deadline lapsed.

The victory of Steve Kurtz, after years of futile prosecution, is an assertion that police agencies have no business prosecuting intellectual thought or artistic expression. After epic struggle, Kurtz is clear from the many charges that assailed him. Yet Robert Ferrell remains a convicted criminal, on the spurious charge of having mailed “injurious material”, a crime that he never committed!

We have had enough damage from the expanded authority of the Patriot Act. It’s high time to start undoing the damage. Isn’t Ferrell, at the very least, entitled a “Sorry about that”?

By David Shevin

(C)opyright 2009 David Shevin All Rights Reserved

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