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Rowell, Fargo. Mervin D. Nordeng, Cass County State's Atty. Turman, Asst. State's Atty. The defendant, Gary Dean Olson, charged with murder, and contending he has no adequate speedy remedy at law, petitioned this Court in an original proceeding for an appropriate supervisory writ directing the trial court to grant his motion for a change of venue from Wahpeton, Richland County, North Dakota, to Minot, Ward County, North Dakota. Olson is charged with the murder of a West Fargo girl named Pollie Johnson.

He filed a motion for a change of venue from the First Judicial District, Fargo, to the Fifth Judicial District, Minot, on the grounds there existed in the "First Judicial District of North Dakota so great a prejudice against the defendant that he cannot obtain a fair and impartial trial. Olson also filed scripts of broadcasts made by the three television stations along with copies of articles from the newspaper pertaining to Gary Dean Olson, the murder of Olson's wife, Dixie, and the murder of Pollie Johnson.

On 27 July Judge Robert L. Eckert of the Third Judicial District, Wahpeton, ased to this case by the Supreme Court, denied the motion for a change of venue to Ward County and for a State-financed public opinion research expert. On 15 AugustOlson filed a new motion for a change of venue from Richland County, Wahpeton, to Ward County, Minot, and again made a motion to hire, at State expense, an expert in the field of public opinion research to lay a further foundation for the change of venue motion should the court determine an insufficient foundation for the motion existed.

In support of his second set of motions, Olson submitted affidavits showing the coverage area of the Fargo news media included Richland County. The second set of motions was denied on 30 August Olson then petitioned this Court for an appropriate writ directing the district court to grant a change of venue to Ward County, Minot. Gary Dean Olson is currently serving a life sentence of imprisonment for the murder of his estranged wife Dixie Olson, found bludgeoned to death in her home in West Fargo on 24 January Prior to that date, on 8 AugustPollie Johnson was found murdered in her family's home just north of West Fargo.

She was shot twice in the head. Pollie Johnson, the sixteen-year old daughter of a local Highway Patrol officer, was described as a popular girl, being a former West Fargo cheerleader, an outstanding gymnast, and a member of a of school organizations. Following Pollie's death a of persons were held and questioned in connection with the murder. At no time, however, was Gary Dean Olson's name mentioned as a possible suspect. A reward fund for any information leading to the arrest and conviction of Pollie's killer was established by a West Fargo service organization and two local banks.

Local rumor news item suggested Dixie's murder might be linked with the earlier death of Pollie Johnson as law enforcement officials indicated after initial investigation of both cases that burglary appeared to be the motive behind the deaths. Gary Dean Olson was arrested on 23 March for the death of his wife, Dixie. Although some rumor of a possible connection between the two cases continued to exist in the community, the burglary theory in the Olson case was dismissed as simply a cover-up and law enforcement officials stated at the time of Olson's arrest that there was no evidence whatsoever to link the two cases.

Gary Dean Olson was found guilty by a jury of his wife's murder on 21 Juneand sentenced to a term of life imprisonment under the North Dakota special dangerous offender statute. The affidavit contained a summary of evidence gathered and statements taken that linked Olson with the Pollie Johnson homicide. This affidavit provided much of the information the news media used to cover Olson's arrest, and served as the basis for stories describing the theory of the murder as developed by law enforcement officials.

Many of these articles discussed and compared the charges against Olson with his prior conviction of the murder of his wife, Dixie. Some of these articles also referred to the fact that he was found to be a dangerous special offender and sentenced accordingly for the murder of his wife.

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The jurisdiction of this Court to exercise general superintending control over inferior courts can be distinguished from its appellate and original prerogative jurisdictions. State ex rel. Jacobson v. District Court, 68 N. The superintending power allows this Court to control the course of litigation in district, courts to prevent injustice in cases when there is no appeal, or when the remedy by appeal is inadequate.

Lemke v.

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District Court, 49 N. Lyon v. Guy, N. Being a prerogative writ, the supervisory writ is to be used, like all prerogative writs, with caution and forbearance for the furtherance of justice, and to secure order and regularity in judicial proceedings when none of the ordinary remedies provided by law are adequate.

Zinn v. District Court, 17 N. Application for a supervisory writ will thus be denied in those instances where the petitioner failed to show that an action by the district court has resulted in a grave or serious prejudice to him for which he has no adequate remedy. Ingall v. Bakken, N. Olson bases his justification for the petition in this case on the denial of his pretrial order for a change of venue which ordinarily is not reviewable except on appeal from a final judgment.

State v. Duffy, 65 N. Availability of appeal after final judgment often falls short of sufficient protection, however, as the burden, expense, and delay involved in a trial renders an appeal from a final judgment an inadequate remedy. Maine v. Superior Court of Mendocino County, 68 Cal. Maxwell, U. Thus we find there are instances when an appeal from a conviction is an inadequate remedy and the invocation of this Court's original jurisdiction is required to protect the defendant's fundamental right to a fair trial.

In the interest of the petitioner and in the sound administration of justice where substantial probability and likelihood of pretrial prejudicial publicity exists, it is preferable to consider and determine the change of venue and make whatever corrections are necessary rather than wait until after trial when the likelihood of reversal and new trial will produce added expense and effort to both the State and the defendant.

See State v.

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Thompson, Minn. We are not disregarding that additional evidence generally is available through voir dire. In the absence of the existence of extensive and prejudicial pretrial publicity so that prejudice to the defendant is probable, the usual practice is for the trial court to defer final ruling on a motion for change of venue until or upon completion of the voir dire examination.

We do not depart from the traditional concept that generally the existence of prejudice can be adequately determined by voir dire examination of potential jurors and by examination of affidavits pertaining to the quantity and effect of publicity. We agree, however, with the California Supreme Court in Maine v. Superior Court of Mendocino County, supra, where they held that in certain instances the determination on the motion is properly made before voir dire.

We find the following quoted language from that opinion particularly relevant:. Under the existing circumstances and upon the record before us we believe this is a proper case for this court to exercise its superintending jurisdiction. We next consider the test involved in determining whether or not a supervisory writ compelling a change of venue should be issued.

Superior Court of Mendocino County, supra. Section 3. Under the above tests it is not necessary that the ends of justice require the transfer, rather it is sufficient that they will be promoted. We recognize that this court on occasions, as well as courts of other jurisdictions, have held the granting of a motion for a change of venue rests within the sound judicial discretion of the trial court and denial of such a motion is not error in the absence of a showing of an abuse of discretion prejudicial to the defendant.

Phillips, 68 N. However, in an original proceeding for a change of venue our review standard is comparable for the model outlined by the United States Supreme Court in Sheppard v.

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Maxwell, supra. Under this standard we make an independent review of the record to determine if a reasonable likelihood of prejudice exists, giving appreciable weight to the trial court's findings of fact based on testimony of live witnesses.

In this instance, where the trial court's determination was not based upon the testimony of live witnesses, but rather upon the same affidavits and exhibits before us on the record, our review, therefore, is in effect de novo. Dolajak v. State Auto Casualty Underwriters, N. The explanatory notes of Rule 21, NDRCrimP, set forth four factors to be considered in a trial court's determination of reasonable likelihood of prejudice resulting from pretrial publicity.

They are: 1 whether the publicity was recent, widespread, and highly damaging to defendant; 2 whether the prosecution was responsible for the objectionable material, or if it emanated from independent sources; 3 whether inconvenience to the prosecution and administration of justice will result from a change of venue or continuance; and 4 whether a substantially better panel can be sworn at another time or place.

We also find relevant four additional factors developed by the California courts in determining if pretrial publicity has had a prejudicial effect as to justify a change of venue. Those factors are: 1 the nature and gravity of the offense; 2 the size of the community; 3 the status of the defendant in the community; and 4 popularity and prominence of the victim.

People v. Witt, 53 Cal. Maxwell is directed toward the second factor contained in the explanatory notes. In his affidavit Judge Maxwell said the affidavit filed with the criminal complaint in this case provided the media with information, the publication of which prejudiced the ability of Olson to obtain a fair trial. As mentioned ly, the State filed, along with the criminal complaint in this case, an affidavit by the chief investigating officer which set forth a summary of much of the evidence gathered by law enforcement personnel leading to the filing of the complaint against Olson.

Petitioner states that some of the information contained in the affidavit is hearsay and would be inadmissible at trial. The net effect, he contends, is the prosecution was responsible for making available to the news media the information that has proven prejudicial to petitioner's right to receive a fair trial.

Rule 4, North Dakota Rules of Criminal Procedure, requires a magistrate to make a finding of probable cause before he issues an arrest warrant. The magistrate is to make his determination of probable cause based on information contained in the complaint, or in the affidavit filed with the complaint, or upon the sworn testimony of any witness adduced, provided such testimony is recorded. The rule specifically provides the evidence on which the probable cause determination is made may be hearsay in whole or in part. In this case reportedly the State has not as of now uncovered any eyewitnesses to the murder of Pollie Johnson.

Consequently, the State's case against Olson is dependent upon circumstantial evidence in the form of bits and pieces of information gathered by law enforcement officials connected to Olson by the testimony of live witnesses.

The statements made by the chief investigating officer in his affidavit simply set forth a summary of information that has been gathered and the statements of live witnesses connecting the information to Olson. The affidavit contains no inflammatory remarks nor does it appear that the State issued any statements that were prejudicial to the petitioner other than the affidavit filed with the court. This court and the United States Supreme Court have stated on a of occasions that to comply with the requirements of the Fourth Amendment the prosecution must set forth with a certain degree of specificity the basis for probable cause.

It could well be argued that had the affidavit of the State contained less information than which it did, it might not have set forth a sufficient basis for a finding of probable cause. The State maintains the practice of filing an affidavit with the complaint is one that they follow in all major cases to insure that the correct procedure is followed and to avoid a possible reversal on appeal.

The widespread publicity received by the two murder cases is demonstrated by the of articles carried by the Fargo Forum in connection with them. The Forum carried four s of the 24 January murder of Dixie Olson and the subsequent investigation.

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The Forum carried 28 news articles regarding the arrest, pretrial proceedings, the trial, and sentencing of Gary Dean Olson for the murder of his wife. Sixteen articles were printed by the Forum concerning Pollie Johnson's murder and the subsequent investigation. Eight of those articles covered the reward fund that was established for information leading to the arrest and conviction of Pollie's murderer.

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Eight articles were also published by the Forum concerning the charge brought against Olson for the death of Pollie Johnson. All eight of these latter articles discussed the charges pending against Olson in relation to his prior conviction for the murder of his wife and two of the articles referred to the fact that Olson was found to be a dangerous special offender during the sentencing proceeding in connection with his conviction for his wife's murder.

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In summary, approximately 56 articles were carried by the Fargo Forum over less than a two-year period concerning the two murders; one murder of which Olson was convicted, and one murder of which he is presently charged. In addition to newspaper articles, the record contains scripts of television news stories on the two murders. Without undertaking a discussion of the quantity and content of these scripts, suffice it to say the contents of the television broadcasts were much the same as those of the newspaper articles.

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