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Analysis: Kim Secured ‘Extraordinary’ Bargain, Experts Say

By Mariel A. Klein, Crimson Staff Writer

Eldo Kim, the then-College undergraduate who was charged last week for allegedly sending emailed bomb threats that temporarily shut down campus last December, reached an “unusual” yet “fair” arrangement in avoiding a trial, law experts said this week.

Instead of immediately proceeding with criminal prosecution, the U.S. Attorney asked on Oct. 10 that the court defer prosecuting Kim for 18 months during which time he must complete several requirements listed in his deferred prosecution agreement.

Under the terms of the pre-trial diversion program, Kim will be confined to his home for four months and will have to complete 750 hours of community service. He will also have to pay restitution to the law enforcement agencies that responded to his bomb threats and make a public apology. If he meets these terms, the U.S. Attorney’s Office will dismiss all charges.

Alex Whiting, professor of the practice of criminal prosecution at the Law School, applauded the U.S. Attorney’s Office for being willing to negotiate this deal, adding that attorneys usually feel pressure to prosecute aggressively in cases like Kim’s.

“I think it is a great outcome,” Whiting said. “There are consequences for him that are very real, but at the same time it takes account of the fact that he’s a young man obviously under a lot of pressure who made a bad decision and [should] have an opportunity to remake his life without a felony conviction on his record.”

Experts described Kim’s diversionary program, in which both the prosecutor and the judge had to agree with the proposal, as “unusual,” but justified by his highly unique circumstances. Since 2001, there has been an increased tendency to give deferred prosecution agreements to corporations, but, according to assistant professor at Boston College Law School Kari Hong, this practice has been criticized because the agreements are usually not available to individuals.

“The defense counsel was honestly very talented to be able to convince the prosecution of the equities that are deserving of this outcome,” Hong said. “There had to be very strong convincing equities that everyone agreed upon that led to all three parties to sign off on this.”

These equities must have shown that the crime was an “incredible aberration” from Kim’s normal character, according to Hong. With the help of defense lawyer Allison D. Burroughs, Kim had to establish that he was otherwise lawful and had lived a responsible life, that highly unusual circumstances led to this aberration, and that he is now better equipped to cope with such circumstances.

Immediately following the bomb threat, several lawyers anticipated Kim would face an uphill legal battle. David Duncan, a criminal and civil trial lawyer in Boston, said last December that he was not sure how “charitable a judge would feel” in this extreme case. Now, he calls the results “extraordinary” for federal court.

Duncan also expects Kim will more than likely be able to avoid federal criminal prosecution.

“He must have been completely compliant, and if he’s been compliant for a year, he’s probably going to be compliant for [18 months],” Duncan said.

Without a criminal record, experts say they are optimistic that Kim will be able to start anew.

“Of course he’s going to have to live with the consequences for some time,” Whiting said. “But at the same time I think he will be able to move on with his life.”

—Staff writer Mariel A. Klein can be reached at Follow her on Twitter @mariel_klein.

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