Erlich Bachman's Bad Day

          T.J. Miller has a temper, but we knew that. Fans of “Silicon Valley” heard the rumors. The 36-year-old comedian was not invited back after four seasons on the hit show. Entertainment reporters said he was erratic on set, often coming late to table reads, and then, well, sometimes appeared to work drunk and/or high.

         But last month, Mr. Miller, who played the character Erlich Bachman, got into a squabble with a fellow passenger on an Amtrak train passing through Connecticut. He appeared to have had a few too many to drink; the woman was not amused by his advances; he thought he’d teach her a thing or two. So he called in a bomb threat, stating that a woman more or less matching the appearance of his antagonist was behaving in a suspicious manner.

         Amtrak and law enforcement responded. There was no bomb. But what there was were a legion of terrified passengers and pissed off lawmen.

         Investigators determined that Mr. Miller made the call. They decided to arrest him. Today they nabbed Mr. Miller at LaGuardia Airport as he disembarked from a flight. They handcuffed him and whisked him to Connecticut, where he was charged with making a false report. The statute has a humorless title: False Information and Hoaxes, and is codified at 18 U.S.C. 1038(a)(1). It’s a federal offense carrying a maximum of five years in prison.

         I know what you’re thinking: A federal offense? Isn’t this the sort of whacky, off-handed stunt we’d expect from a comedian? Let’s face it: this is the adult version of the sort of prank that leads some kids to call a funeral home to report their cranky neighbor dead, against the hope that a hearse will arrive to find the geezer alive and stunned.

         Mr. Miller had the misfortune to be riding on Amtrak, a transportation facility governed, arguably, by federal law. His lawyers can try to fight whether the feds have jurisdiction over a local offense. Getting the case tossed from federal court would be a major victory, even if Mr. Miller were re-charged in state court.


         The federal penal code is top-heavy: almost every federal offense is a felony. State penal codes, by contrast, are more robust – you can actually break the law and be charged with a less serious offense.

         If the case remains in federal court, Mr. Miller’s lawyers have a fight on their hands. Clearly, the comedian had a few too many drinks. He behaved out of character. He appears not to have a criminal history, and, one suspects, after this arrest, he’ll unlikely reoffend – his arrest was reported worldwide.

         There is a rarely used provision in federal law to give folks who make a mistake a chance to avoid a felony conviction: It’s called pre-trial diversion. Prosecutors are stingy in granting access to the program, but Mr. Miller ought to fight for entry into it, if, in fact, the feds can prove their case. It is significant to note that no grand jury voted to indict the actor. Although the event is almost a month old, prosecutors side-stepped a grand jury and proceeded by way of a complaint. Mr. Miller has a right to have a grand jury decide whether the government can make a case against him.

         So welcome back to the limelight Erlich Bachman. This time you’ll need to show up on time, remain sober, and follow the script your lawyer assigns. If you listen, you might just be spared a prison sentence, and, perhaps, even a felony conviction.


Don't Cut and Run, Representative Esty

       The people of Connecticut’s 5th Congressional District deserved far more than they’re getting from Representative Elizabeth Esty, but not for the reasons you might think.  In announcing her decision not to seek re-election in November, she knuckled under to pressure from a well-organized mob. It is hardly a profile in courage.

            The new prudery sweeping the nation claimed Esty as its latest victim. Her crime? She didn’t act quickly and vigorously enough to condemn an aide accused of harassing a female colleague.

            The allegations against Tony Baker, her former chief of staff, are ugly. He apparently got romantically involved with a staffer, and then went to pieces when the relationship ended, calling the beleaguered colleague and subordinate some 50 times one day in May 2016. When the colleague wouldn’t respond, he left a voicemail. “You better f-----g reply to me or I will f-----g kill you,” according to The Washington Post.

            Mr. Baker, it appears, has issues with rejection. (Baker apparently denies some, but not all, of the allegations. But who needs a trial in this over-heated environment? It is enough to be accused these days.)

            Esty sent Baker packing, providing him severance pay and a favorable recommendation. She did not act quickly or forcefully enough to suit the new moral censors peeking between as many sheets as they can rustle.

            Baker’s alleged misconduct took place in the days before the #MeToo movement made #IBelieveHer the new national mantra. We must believe the accuser, you see. We must punish the accused, you understand – the more severely the better.

            To Hell with due process. Accusers are victims merely because they say so.

            Calls for Esty to resign have flooded in from coast to coast. Last week, the representative stood firm: she was not resigning. This week she’s rethought things. She’s not seeking re-election.

            What a coward.

            Why not give the people of the 5th Congressional District a choice in the matter? They elected her. She is in her third term. What gives a self-righteous mob the right to drive an elected official from office.

            I would have loved to see a candidate with the moxie to stand her ground. Esty could have been a national proving ground for the new politics of pathos.

            “Yes, I erred,” she could have said while standing in any number of distressed communities in her district. “I should have, and could have, done better. But the people of this district elected me to create jobs, improve the infrastructure, and attend to the concerns of ordinary working people here in Connecticut. I’m not taking my marching orders from anyone else.”

            She could also have reminded people about civility and the rule of law, about orderly process, and the dangers of mass hysteria and leaping to conclusions.

            We have laws to punish people who transgress. The criminal code makes it a crime to threaten or harass someone. Mr. Baker may well have broken those laws.

            On the civil side, a person who claims to have been injured can pursue money damages. Presumably, the target of Mr. Baker’s rage can do that.

            Both the criminal and civil remedies for transgression are measured and proportionate. We don’t execute a man for flirting; and no one should lose their professional livelihood for isolated acts of bad judgment.

            But that doesn’t satisfy our new taste for righteous bloodlust. We’ve driven one public figure after another from the stage because they couldn’t keep their libidinal house in order. Think Matt Lauer, or Garrison Keiler, or Charlie Rose.

            Private employers are free to chart whatever course they like. If they want to bend to every hysteric wind that passes, their employees are on notice to be wary.

            But we elect public official in time-honored and time-tested processes. No self-righteous mob ought to possess the power to bully a person out of office. It is chilling to see a public official driven from office in such a manner.

What next, public lynchings?

            I hope Esty reads this. I hope she digs in and submits the question of whether she should be elected to the people in her district, not to the pundits seeking platforms on talk shows.

            Esty’s a loser in this tawdry affair. So, too, are the people of the 5th District.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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