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Clifford Van Syoc, a well-known frequent filer of employment-related suits against public entities, faces sanctions for prompting a mistrial by calling a public official a racist before a mixed-race jury. During opening arguments of a Mercer County, N.J., wrongful-discharge suit on Jan. 25, Van Syoc told the jury, including four blacks, that Hamilton Township, N.J., Police Officer James Pizzullo suffered retaliation for objecting to Police Chief Richard Taylor’s use of a racial slur. That accusation had not been made in the complaint nor in any other pretrial documents. Both Pizzullo and Taylor are white. After Taylor’s lawyer, Michael Herbert Sr., objected and the jury was excused, Van Syoc told the judge — in the presence of the courtroom press — that he intended to prove that Taylor used the word “n—-r” repeatedly and that he made a notch on his gun for having killed a black teen-ager. After a sidebar conference, Superior Court Judge Maria Sypek gave a curative instruction to the jury, but Herbert urged her to order a mistrial, fearing that newspapers the next day would publish Van Syoc’s remarks. Sure enough, on Jan. 26, The Trentonian‘s front-page article, headlined “Taylor’s Nasty Notch,” reported extensively on Van Syoc’s statements. That prompted Sypek to grant a mistrial on Jan. 29. On March 2, Herbert lodged his motion for sanctions, arguing that Van Syoc deliberately made his comments in a public forum, where they were likely to be picked up by the press and thus poison the pool of potential Mercer County jurors. Herbert, of Princeton, N.J.’s Herbert, Van Ness, Cayci & Goodell, has asked that Van Syoc be assessed costs for defense counsel during the aborted trial. Herbert charges that Van Syoc violated several Rules of Professional Conduct, among them RPC 3.1, by injecting race into a case where it was not an issue; RPC 3.3(a)(5), by failing to give notice that he intended to make race an issue; and RPC 3.4, by alluding to a matter that was not relevant nor supportable by admissible evidence. Herbert pointed out that throughout the course of discovery Van Syoc had never mentioned racial slurs by Taylor. But Van Syoc says Herbert should have been aware of the rumors about the notch on the gun and the chief’s use of racial epithets, which he says were widely known in Hamilton. Van Syoc, who calls the motion for sanctions “frivolous and retaliatory,” says he did not plan in advance to bring up the racial issue but decided to do so to show a pattern of abusive behavior by the chief. “That is a town where the head of the police department is running amok. It’s a relevant issue because the chief used ethnic slurs to refer to my guy. He called him a guinea,” says Van Syoc, whose client is of Italian descent. Pizzullo was fired from the department in 1994 after the hanging death of a suspect in his custody, though Pizzullo claims he was fired because of a dispute between his father and the chief. Pizzullo and the other plaintiff, Anthony Recine, who filed suit after being passed over for a promotion to the rank of sergeant, also have a claim under the Conscientious Employee Protection Act. They allege in Recine v. Taylor, MER-L-003271-94, that they were retaliated against for reporting a 1994 incident at a police union hall where other officers allegedly assaulted an exotic dancer who was performing at a bachelor party. Herbert says Van Syoc’s playing of the race card could serve to focus jurors’ attention on extraneous matters by implying that their verdict has ramifications beyond this case. “This is not a good time to be representing a police department, with issues like profiling,” says Herbert. In fact, Herbert filed a motion for a change of venue to Hunterdon County, N.J., insisting he won’t be able to empanel an impartial jury in Mercer County. Assignment Judge Linda Feinberg denied the motion on April 27, without prejudice to renewal when the case comes up for trial in September. She also postponed consideration of the sanctions motion until a new judge is assigned. Sypek recused herself at Van Syoc’s request because of a friendship between her husband, attorney Arthur Sypek, and Hamilton, N.J., Mayor Glen Gilmore. Recine’s lawyer, George Dougherty of Katz & Dougherty in Lawrenceville, N.J., says he believes that Herbert wants to move the case to Hunterdon because its small number of judges would cause further delays in the case. “I think the defense benefits from the delay, and I think they’re trying to wait us out. I think clearly the clock is on their side,” he says.

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