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Clinic Suit Prompts Justice to Release Non-prosecution Agreement

By Eric Williamson

UVA Law First Amendment Clinic

In March the Justice Department released a non-prosecution agreement it previously withheld from University of Virginia School of Law researchers, effectively settling a lawsuit the school’s First Amendment Clinic filed under the Freedom of Information Act.

UVA Law business research librarian Jon Ashley served as plaintiff in the lawsuit after being denied his request for the details of a $2 million settlement between the U.S. Attorney’s Office for the Southern District of Texas and Houston-based ABC Professional Tree Services Inc. over the company’s use of undocumented workers. Ashley was conducting research in association with Professor Brandon Garrett, a criminal justice expert who has been compiling non-prosecution agreements online to further his research on—and public awareness of—white-collar crime.

“After more than a year of litigation by clinic students, the Department of Justice’s final response was, ‘never mind,’ and they readily shared the agreement,” Garrett said. “It is a totally unremarkable non-prosecution agreement, raising the question why it was ever sealed in the first place.”

Ashley agreed that the difficulty involved in his information request was “baffling.” He said the request was the first time he has ever invoked the Freedom of Information Act.

The clinic’s complaint against the DOJ argued a “strong public interest in understanding the judicial system and why admitted wrongdoers are not criminally prosecuted.”

Paula Salamoun, a third-year who drafted much of the language in Ashley’s complaint, said the need to get the details just-so was intimidating, but ultimately rewarding.

“As a student, being tasked with drafting a complaint for federal court carries with it a certain level of intimidation, particularly in knowing that each word, sentence and claim would be up for scrutiny,” Salamoun said. “But this real-world experience, with real consequences at stake, is exactly what has made my experience in the First Amendment Clinic so valuable.”

Ashley and Garrett's collection of non-prosecution and deferred prosecution agreements already included deals made with Boeing Co., Google Inc., GlaxoSmithKline, Halliburton Co., and JPMorgan Chase & Co., among others, that were not sealed by the government.

Ashley thanked the clinic for helping him add the latest agreement. “I’m grateful for the First Amendment Clinic’s assistance and expertise,” said Ashley, who said he will continue to pursue, with the clinic’s help, 30 additional documents that have not been delivered to date.

Josh Wheeler, co-director of the clinic and director of the Thomas Jefferson Center for the Protection of Free Expression, said the clinic will likely file one all-encompassing request for the outstanding documents. The center has been working with the Reporters Committee for the Freedom of the Press, led by the clinic’s co-director Bruce Brown, to aid the law students’ efforts.

“I hope that the Department of Justice agrees to promptly release the other agreements that have not been disclosed to date,” Garrett said. “There is enormous public interest in the resolution of corporate prosecutions, and the public and the press will only continue to wonder why some of these deals have been kept under wraps.”

Garrett is the author of a forthcoming book, “Too Big to Jail: How Prosecutors Compromise with Corporations,” which bases many of its findings on public records compiled with Ashley, including additional plea agreements.