Former Police Chief Seeks Dismissal of Charges

Former Hamilton Police Chief Walter Cullen sought on Friday to have two of the charges against him dropped because, his lawyer argued, Cullen didn't make any misrepresentations about his medical certification to town officials.

Cullen was indicted last year on two counts of emergency medical services violations and one count of both procurement fraud and larceny more than $250 in connection to an investigation that found officers had signed attendance sheets for medical training classes required to obtain an EMT certification, but did not actually attend those classes.

If Cullen lied about being properly certified as an emergency medical technician, it was to state regulators at the state Office of Emergency Medical Services and not Hamilton town leaders, as the indictments allege, argued his attorney Thomas Kiley in Salem Superior Court.

"There was no evidence before the grand jury that the town of Hamilton had an interest in his certification," Kiley said, because his contract didn't include language that required he be an EMT.

Even though Cullen was director of the town's emergency medical services, it didn't require that he be an EMT, Kiley said.

"There is nowhere in the grand jury testimony that says Chief Cullen didn't perform his duty as director of Emergency Medical Services," Kiley said.

Cullen, and three co-defendants - David Mastrianni, who had been in charge of medical training for Hamilton police; Henry Michalski Jr., the former Ipswich and Middleton fire chief, and former Wenham police officer Jim Foley - stood behind Kiley at the hearing as he made Cullen's case to Judge John Lu.

Foley has been charged with a count of emergency medical services violation and one count of attempted obstruction of justice; Michalski with six counts of emergency medical services violation, two counts of attempted obstruction of justice and perjury, and Mastrianni with four counts of emergency medical services violation and two counts of writing a false report. Lawyers for those three defendants didn't address their clients' cases on Friday, but scheduled several hearings for November and December where defense attorneys plan to argue that certain statements made to investigators by their clients should be tossed out.

"We're only 1,500 pages into the 2,500 pages of discovery," said Randy Chapman, an attorney for Foley.

The larceny charge against Cullen should also be dropped, Kiley said, pointing to "pay runs" submitted as evidence during grand jury testimony. Those documents show Cullen was not paid extra for having an EMT certification.

"The line is blank," Kiley said referring to a section of the records showing EMT stipends. "Chief Cullen did not receive an EMT stipend unlike the other nine officers who are not charged here."

Cullen received the same pay amount for each pay period, with the exception of occasional overtime pay, Kiley said.

"The grand jury heard no evidence that supports either of these indictments," Kiley said.

The full motion, which outlines in detail Kiley's arguments and previous case law that supports his argument, has been filed under seal because it includes grand jury testimony, which is secret.

Margaret Parks, a prosecutor with the state Attorney General's public corruption unit, said Cullen didn't have any of the certifications needed to be an EMT as of April 2008 and entered into a contract with the town that June, which called for him to be paid a stipend based on having an EMT certification.

"Our argument is the defendant obtained his EMT certification through fraud," she said.

The larceny charge is based on the $3,400 in annual pay Cullen allegedly received for being an EMT. Cullen would have also been paid a lesser annual amount for undergoing 30 hours of training in the coming year.

"The smaller amount was a prospective requirement when the defendant signed the contract," Parks said, but Cullen was required to be an EMT when he signed the chief's contract.

Lu listened to both attorneys and said he would take the motion "under advisement" and issue a ruling at a later date.

Kiley also alluded to a prospective motion he would file arguing Cullen in the victim of "selective prosecution" for the emergency medical services charges, but said he would wait until he sees the status of other cases before deciding whether to file it.

On Friday, Lu also worked to keep the case headed toward either a trial or a plea agreement. Chapman recently took over for Foley's previous attorney, former U.S. Attorney Donald Stern, who is no longer on the case. Given the attorney switch, Lu said he would give Foley some more time to make filings, but wanted to keep all four defendants on the same schedule and did not want to "reset the case."

"It's not my desire to start the process from the beginning," Lu said.

Friday's hearing lasted about 45 minutes, with a large portion consisting of a sidebar – where attorneys for all four defendants plus the prosecutor spoke with Lu about any settlement talks. Lu later said in open court that those talks would continue at the next hearing scheduled in the case for Nov. 23.