November 19, 2008 in City

Court orders new judge in 1991 killing

Staff writer

A federal appeals court panel, quoting the Rolling Stones, ordered the appointment of a new judge to handle a murder charge brought in connection with a 1991 killing on the Colville Indian Reservation.

James H. Gallaher Jr.’s case ended up in the 9th U.S. Circuit Court of Appeals this year after U.S. District Court Judge Robert H. Whaley, of Spokane, refused last year to accept Gallaher’s guilty plea in the death of Edwin Pooler. Pooler’s body has never been found.

Gallaher struck a plea bargain and entered a “conditional guilty plea” in May 2007 to a charge of involuntary manslaughter to avoid trial on a charge of first-degree murder, which carried a longer potential prison term.

His conditional plea would have allowed Gallaher to withdraw his admission if an appeals court reversed the trial court judge’s earlier decision not to dismiss the murder charge.

After reading a presentence report on Gallaher’s background, the judge refused in August 2007 to accept the plea bargain and sentenced the defendant to the recommended four to six years in prison. Gallaher remains in custody with the federal charges pending.

“You can’t always get what you want,” the federal appeals court ruling said, crediting the Rolling Stones song.

“A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent,” the ruling said.

The appeals court said it was too early to rule on Whaley’s refusal to dismiss the murder charge, as the defense requested, because the defendant had not been found guilty.

The appeals court also said the district court judge properly exercised his discretion by rejecting the conditional plea, but erred by reviewing Gallaher’s presentence investigation report.

“Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty,” the appeals court said.

Gallaher’s defense attorney, Assistant Federal Defender Steve Hormel, and the prosecutor, Assistant U.S. Attorney Joseph Harrington, supported his conditional plea as a way to close the case, in part for the benefit of Pooler’s survivors.

“Both parties agree that if the review of the presentence report was in error, reassignment to a new judge is the appropriate remedy,” the appeals court ruled, saying that decision “was not a reflection” on Whaley.

The case had not yet been assigned to a new judge Tuesday.

As part of the deal, Gallaher took a team of FBI agents in June 2007 to a remote spot on the 1.4 million-acre Colville reservation where he said he dumped Pooler’s body. Some evidence was collected and underwent scientific examination.

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