(dissenting) — While the majority discussion regarding dismissal of the forgery count in the indictment against defendant correctly applies the law, I cannot agree with the majority holding regarding the trial court’s refusal to grant a change of venue in this matter. Reversal of the trial court’s arrest of judgment is also a disturbing matter, but it seems to be compelled by the rule long followed in testing the sufficiency of circumstantial evidence in Washington. See State v. Slaughter, 70 Wn.2d 935, 425 P.2d 876 (1967).
While I heartily concur that the news releases in question in this case constitute flagrant violations of the Statement of Principles of the Bench-Bar-Press of the State of Washington, and the Guidelines for the Reporting of Criminal Proceedings, adopted March 26, 1966, I cannot agree with the majority analysis of the legal significance of these reports.
*41In consideration of a change of venue question, a beginning point for analysis is the decisions in Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965), rehearing denied 382 U.S. 875, 15 L. Ed. 2d 118, 86 S. Ct. 18 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). In these cases, no identifiable showing of prejudice was required. Rather, the procedure was found to be defective in that prejudice was so likely to result that the process was inherently lacking in due process. Whether such a lack of due process exists is a question to be determined by the appellate court after an independent review of all the relevant circumstances.3 That is, the appellate court is mandated to review the record and from this independent review to determine whether or not the trial court’s refusal to grant a change of venue denied the defendant a fair and impartial trial. Maine v. Superior Court, 68 Cal. 2d 375, 438 P.2d 372, 66 Cal. Rptr. 724 (1968), noted 56 Cal. L. Rev. 1703 (1968); People v. Tidwell, 3 Cal. 3d 62, 473 P.2d 748 (1970).
After examining this record, I cannot agree with the majority that the defendant could have received a fair and impartial trial by jurors exposed to the press coverage surrounding this case. The Yakima Herald Republic, the record discloses, is the only daily newspaper in Yakima County, and it has general circulation in that county. The record contains four articles that appeared in that newspaper. In addition, radio and television coverage of the story was extensive. Thus, it seems apparent that considerable *42community interest existed in the case. This interested community was told through its only daily newspaper’s reports of statements by the county prosecutor that (1) a shortage had been discovered in the accounts of the justice courts in the county; (2) that the defendant, Sandra Stiltner, was arrested in connection with this shortage; (3) that the four other women who worked in the office of the justice court had each received a letter4 from the prosecutor, stating that, based on lie detector tests and handwriting examinations, she had been absolved of guilt. The inference is, of course, completely obvious — four of five suspects were absolved by the prosecutor and the fifth arrested, so of course, the fifth who refused to take a he detector test, must be guilty. Another article discloses that Mrs. Stiltner had been arrested and bond set in her case. It is stated that she had earlier resigned her position. (The record shows her ill health forced her to do so, but the story is so worded that the inference she quit under fire could be drawn.) Still another story told of Mrs. Stiltner’s plea of innocent to the charges brought against her. Again, as in the other stories, the charges were detailed. Finally, an earlier article in the same newspaper stated that four of the clerks had at that time voluntarily taken lie detector tests and had been cleared. The prosecutor later stated in a published interview that four clerks had voluntarily submitted to lie detector examination and the three who had actually taken the examination had been cleared; the fourth test was conducted later and resulted in clearing that clerk. Again, the inference that the four innocent clerks had voluntarily acted to demonstrate their innocence and that the fifth clerk — the guilty one — was seeking to hide her guilt, is clear from the newspaper account.
The polygraph is not an infallible instrument. Even in the case of skilled operators, the machine is susceptible to error. The newspaper accounts did not mention this fact, nor did they note that the results of a polygraph examination are well-nigh universally inadmissible in evidence *43against a defendant. The result of the conduct of the prosecutor was thus to place before the general populace of Yakima County his belief, wrapped in the cloak of scientifically derived fact — though science is apparently unwilling to accept with a high degree of reliability the test done here — that the defendant was guilty 'and was trying to hide her guilt from the people with whom she had spent her entire life.
The defendant grew up in the Yakima area and worked in the justice court there almost from the time she graduated from high school. She was thus presumably well known in Yakima County, which has a relatively small and largely rural population. In this county, the defendant was brought to trial. The prosecutor indeed proved that there had been a theft and that Sandra Stiltner had had the missing money in her possession for a time. To show that she had embezzled these funds, the prosecutor depended upon a file jacket with certain writing that the defendant admitted was hers. There is a reasonable explanation for this entry, consistent with the defendant’s innocence. She may have received a request for information from the jail and made this entry in the course of determining the amount of money outstanding in the case. Another clerk made a somewhat similar error, but was able to discover other documents which explained the apparent shortage in that case. As the majority points out, the fact that Mrs. Stiltner could not remember this case after 2 years is understandable in the case of one who deals with such cases on a daily basis. Thus, consistent with the evidence, the jury could have found Mrs. Stiltner to be guilty of nothing more than a faulty memory. It is impossible to say that the jury did not exorcise from their minds reasonable doubts about the defendant’s guilt raised by the evidence on the basis of the statements of the prosecuting attorney. He stated in the only daily newspaper in the county that he had investigated and on the basis of scientific fact he had exonerated four of five suspects and had charged the fifth. At trial, it would have been both a violation of the Canons *44of Professional Ethics and reversible error for the prosecutor to express to the jury his individual opinion on the guilt or innocence of the defendant. State v. Long, 65 Wn.2d 303, 396 P.2d 990 (1964). Expression of such opinions by the prosecutor in the only daily newspaper in the county regarding a case which had aroused considerable public interest ought not to be better received by the law. The dubious and distorted nature of this proof remained outside the evidentiary record at trial. Because it is impossible to say that the jurors did not use these published statements to soothe their doubts about the evidence, I cannot say that it is clear to me that Sandra Stiltner’s guilt was established by evidence properly adduced according to due process of the law. Therefore, I must dissent from the result reached by the majority. I would grant defendant a new trial in a more neutral location.
Petition for rehearing denied February 9, 1971.
Appealed to Supreme Court February 16, 1971.
The Washington Supreme Court has long followed a different analysis in these matters. Its test of abuse of discretion is one almost impossible to meet. See State v. Malone, 75 Wn.2d 612, 452 P.2d 963 (1969), wherein no abuse of discretion was found in failure to grant a change of venue, even though a search of appellant’s residence during a narcotics raid was televised at the invitation of the Yakima County Sheriff. Such analysis often appears to be based in the jurisprudentially outworn and never acceptable concept that the guilty are entitled to fewer protections than are the innocent. On the contrary, of course, the seemingly guilty must be afforded the full protection of due process or no man may ever confidently stand before the bar of justice, sure that his guilt or innocence will be established finally only according to the precepts of the law.
Portions of the letter were printed verbatim in the newspaper.