Two days into hearings by a federal grand jury that is considering bioterrorism charges against a Buffalo art professor, just one of the eight colleagues of the professor subpoenaed has actually testified. Federal prosecutors may also be looking into whether another person may have illegally supplied the Escherichia coli used in one of the exhibits.

Steven Kurtz, an associate professor at the Buffalo campus of the State University of New York (SUNY), is being investigated because after he called 911 early May 11 to report that his 45-year-old wife had died overnight, police noticed Petri dishes and a mobile DNA extraction laboratory in his home that he used in his most recent project, according to his lawyer and some supporters.

Subpoenas ordering eight of Kurtz's present and former art colleagues to testify before the grand jury Tuesday (June 15) referred to a section of the US Biological Weapons Anti-terrorism Act of 1989, which the 2002 Patriot Act expanded to make it illegal for citizens to possess any biological agents without good reason.

Only one of the eight subpoenaed colleagues—Kurtz's art department chair, Adele Henderson—actually testified Monday (June 14). Lawyers for the others refused for them in advance, citing their clients' Fifth Amendment protection against self-incrimination, according to Buffalo attorneys Thomas Eoannou and James Harrington, each of whom represents one of the subpoenaed artists.

Lawyers representing two of the other colleagues said they recommended not testifying because witnesses' attorneys are not allowed to attend federal grand jury proceedings, so they cannot defend their clients against apparently self-damaging statements.

Buffalo lawyer Daniel Henry told The Scientist he advised his client, University of California at Irvine professor Beatriz da Costa, not to testify because prosecutors told him they were viewing her as both a "witness" presumably uninvolved in any crime and as a "subject" who they think might possibly have committed one. Buffalo attorney James Harrington said his client, fellow Buffalo art professor Andrew Johnson, didn't testify because prosecutors refused to say whether they consider him a witness, a subject, or a "target"—a prime suspect.

Henderson said that during her testimony, the primary prosecutor, assistant district attorney William Hochul, Jr., asked about Kurtz's employment, his research, his funding, and his political writings. "One of the things they were pressing me on is why I haven't read it," she said. She explained to The Scientist that Kurtz's renowned reputation in the art community comes from his exhibits and not his writings, which are self-published and therefore not considered as valuable as peer-reviewed publications.

Kurtz's lawyer, Paul Cambria said that the federal prosecutors told him yesterday (June 16) the Kurtz's acquisition of the E. coli may have been illegal. But Cambria said that was unjustified. "If there was a question about whether or not the material was owned by the university or whether it was owned by the individual who gave it to Dr. Kurtz, as far as I'm concerned, that would be a local state prosecutor's issue. It certainly wouldn't be federal," he said, "so that makes me wonder what's going on, how far they're stretching."

Cambria said that even if the scientist hadn't owned the bacteria, Kurtz would still not be at fault. "He had no knowledge that that wasn't true."

Citing department policy, Hochul said today that he would not comment on the investigation or verify that it is ongoing until and if charges are filed.

It is not clear how long the grand jury investigation will continue. Cambria said that Hochul told him yesterday, "We're in the fact-finding process. We're still calling witnesses and still looking into it."

Several organizations, including the American Association of University Professors, the union for SUNY professors, the American Civil Liberties Union, and the PEN American Center, a national writers' organization, have issued strong statements criticizing the investigation.

C.J. Peters, a professor and bioterror researcher at the University of Texas Medical Branch in Galveston, said, "This is just part of the 'select agent' hysteria. Making common organisms sound as though they should be under lock and key is very confusing to law enforcement and the public."

Richard Ebright, a professor at Rutgers University, said, "Based on the information released to date, the materials were not hazardous, the procedures were not hazardous, and the application was a 'peaceful purpose' expressly protected under law."

Barbara Rosenberg, a professor at the SUNY Purchase campus, said, "Clearly the Justice Department hasn't the foggiest idea of what is significant. They didn't bother screening flight school students but, by George, they're determined not to overlook any suspicious art professors!"