A4
East Oregonian
Thursday, December 20, 2018
CHRISTOPHER RUSH
Publisher
KATHRYN B. BROWN
Owner
DANIEL WATTENBURGER
Managing Editor
WYATT HAUPT JR.
News Editor
Founded October 16, 1875
OTHER VIEWS
It’s time to ask voters again,
should death penalty stay?
Corvallis Gazette-Times
O
regon legislators are considering proposals to dra-
matically limit the types of crimes in which the
death penalty can be applied — a roundabout way
to essentially gut capital punishment in the state.
The proposals under consideration are clever ways to
get around the fact that it would take a vote of the public to
outlaw the death penalty in Oregon. But it’s been decades
since Oregonians voted on whether to retain capital pun-
ishment, and it’s possible (perhaps even likely) that public
sentiment has changed on the topic since then. Why not just
refer the question to voters instead of finding ways to work
around the will of the electorate?
Oregon Public Broadcasting reported last week on the
proposals floating around in Salem. One proposal being
discussed by Rep. Mitch Greenlick, D-Portland, and Sen.
Floyd Prozanski, D-Eugene, would alter the definition of
aggravated murder — currently, the only crime punish-
able by death in Oregon. Under current law, the crime of
aggravated murder includes elements such as multiple vic-
tims, the inclusion of torture in committing the crime, or an
exchange of payment for the killing.
The proposal Greenlick and Prozanski are considering
would remove those factors and would limit aggravated
murder to deaths resulting from acts of domestic or interna-
tional terrorism.
Another proposal in Salem involves changing the ques-
tions that juries must answer in the sentencing phase of the
trial, with an eye toward making death sentences less likely.
One change being eyed: Eliminating a question that asks
jurors to determine if there is a “probability” that a defen-
dant will commit violence in the future. Another change
would increase the burden of proof jurors face when deal-
ing with the question of whether a defendant should be sen-
tenced to death; under the proposal, jurors would have to be
certain beyond a reasonable doubt.
There may be some merit to these proposals, but they
AP Photo/Rick Bowmer, File
The execution room is shown Friday, Nov. 18, 2011, at the
Oregon State Penitentiary in Salem.
tiptoe around the main issue: Whether Oregon voters still
believe in the death penalty. In 1984, voters approved a pair
of death penalty-related initiatives. But those elections were
more than three decades ago, and it’s possible that devel-
opments since then regarding the death penalty might have
changed some minds on the issue. And there’s an entire
generation of voters who haven’t had the chance to weigh
in on the question.
In fact, we’ve been surprised that there hasn’t been
more of a push on the part of state officials and lawmakers
to refer the death penalty to voters. After then-Gov. John
Kitzhaber put a moratorium on capital punishment in 2011,
he made a halfhearted effort to goad the Legislature into
action, but the proposal didn’t gain any traction. Gov. Kate
Brown has continued the moratorium, but has otherwise
been quiet on the issue.
Oregon hasn’t executed a prisoner since May 1997; the
state has 32 men and one woman on death row. It’s not
clear whether any of the legislative maneuvers now under
consideration would retroactively affect any of those 33
cases.
This new discussion opens a new chapter in the state’s
convoluted history with the death penalty: Capital punish-
ment was outlawed by Oregon voters in 1964 and then was
re-enacted in 1978. Three years later, the state Supreme
Court ruled that the death penalty was unconstitutional,
paving the way for the 1984 initiative in which voters reaf-
firmed capital punishment.
Since then, though, the topic has been rarely revisited in
Oregon, even though there’s been action elsewhere: Since
2007, six states have ended capital punishment, although
voters in Nebraska reinstated it in a 2016 election. Earlier
this year, the Washington state Supreme Court ruled that the
death penalty was unconstitutional, on grounds that it was
administered in an arbitrary and racially biased manner.
Some of those arguments against the death penalty may
be resonating now with Oregon voters. But the only way to
be sure is to let them vote on the issue.
OREGON HASN’T EXECUTED A PRISONER SINCE MAY 1997;
THE STATE HAS 32 MEN AND ONE WOMAN ON DEATH ROW.
OTHER VIEWS
After wild hearing, Flynn’s future uncertain
T
he sentencing of former Trump White
House National Security Adviser
Michael Flynn on a single charge
of lying to the FBI turned into a dramatic
scene in a Washington, D.C., courthouse
Tuesday. Federal Judge Emmet Sullivan
excoriated Flynn for
what is called uncharged
conduct — that is, for
crimes which Flynn
has not been formally
accused of committing.
In open court, Sul-
livan raised the ques-
tion of whether Flynn, a
B yron
retired Army three-star
y ork
general with more than
COMMENT
three decades of service,
might have committed
treason. He questioned whether Flynn sold
out the United States. He said Flynn had
served as an unregistered foreign agent (for
Turkey) inside the White House.
“Arguably, that undermines everything
that this flag over here stands for,” Sullivan
said, gesturing toward the American flag in
the courtroom, according to reporters who
were present. “Arguably, you sold your
country out.”
All were terribly damaging accusations,
especially coming from a federal judge sit-
ting in court. And all were false, given that
Flynn did not commit treason, did not sell
out the United States, and did not serve as
an unregistered foreign agent in the White
House. There’s a reason Trump-Russia spe-
cial counsel Robert Mueller did not charge
Flynn with those crimes, and the reason is
he did not commit them.
It appeared Judge Sullivan had a
momentary loss of reason, or didn’t have
his facts straight, or both. He later walked
back some of his comments, but the dam-
age was done.
In the end, Sullivan postponed Flynn’s
sentencing until at least March. By then,
more than 15 months will have passed
since Flynn pleaded guilty to lying to FBI
agents investigating the Trump-Russia
Unsigned editorials are the opinion of
the East Oregonian editorial board. Other
columns, letters and cartoons on this page
express the opinions of the authors and not
necessarily that of the East Oregonian.
affair.
Specifically, Flynn confessed to not tell-
ing the truth about a conversation he had
with Russia’s then-ambassador, Sergey
Kislyak, in December 2016, during the
presidential transition. The FBI inter-
viewed Flynn about the conversation the
next month, in January 2017. That inter-
view led to the charge of lying to the FBI.
The days leading up to the hearing gave
the public a closer view of the Flynn case
than ever before. But even though the pub-
lic saw newly released documents relating
to Flynn, the information did not resolve
some old questions. Why did the FBI
agents who interviewed Flynn not believe
he was lying? Why did the FBI’s director
at the time, James Comey, give Congress
the impression that Flynn would not be
charged? And why did that change when
Mueller arrived on the scene?
Flynn admitted lying to the FBI. He
repeated that admission in court before
Judge Sullivan. But documents from the
bureau’s investigation made clear that
FBI official Peter Strzok and a second,
still publicly unidentified agent who inter-
viewed Flynn did not believe he had lied
to them.
“Strzok and (redacted) both had the
impression at the time that Flynn was not
lying or did not think he was lying,” said
an FBI document from August 2017, based
on an interview with Strzok.
It is worth noting that the agents had a
wiretap transcript of Flynn’s conversation
with the Russian ambassador when they
questioned Flynn. And even with that, they
came away with the impression that he
wasn’t lying.
Republican Sen. Charles Grassley,
whose investigators interviewed Comey in
2017, wrote that the then-director “led us
to believe ... that the Justice Department
was unlikely to prosecute (Flynn) for false
statements made in that interview.” (In a
move that confused many Republicans,
Comey recently told the House the Flynn
investigators concluded that “he was obvi-
ously lying.”)
In any event, in May 2017, it appeared
that the Justice Department was not
going to charge Flynn. Then Comey was
fired, Mueller was appointed, and Fly-
nn’s fortunes changed. Six months later, he
pleaded guilty.
It is still unclear what happened to
change the course of events in that time,
and the sentencing hearing did nothing to
clarify things.
Judge Sullivan was apparently triggered
by a memo submitted by Flynn’s lawyers
that argued that while Flynn was indeed
guilty of lying, there were some “addi-
tional facts” the judge needed to know
before sentencing. For example, the Flynn
team said the FBI surprised Flynn with
the interview request and suggested he not
have a lawyer present. They also specifi-
cally chose not to warn Flynn of the conse-
quences of lying to the agents.
Sullivan seemed to regard that as Flynn
trying to make excuses, to weasel out of
his guilty plea, even though Flynn con-
firmed his guilt in court.
Sullivan also seemed angry about Fly-
nn’s failure to register as a foreign agent
for his work representing the government
of Turkey. Although that work did not take
place in the White House — Flynn stopped
before taking office — his failure to reg-
ister, even though rarely prosecuted, is the
sort of thing a judge can consider in setting
a sentence.
Now the case will be on hold for at least
a few months. But for a few moments, the
craziness that can surround political debate
over the Trump-Russia affair —hot tem-
pers, unfounded charges, promiscuous
accusations of treason — made its way
into a federal courtroom. And Michael Fly-
nn’s future remains uncertain.

Byron York is chief political correspon-
dent for The Washington Examiner.
The East Oregonian welcomes original letters of 400 words or less on public issues and public policies for
publication in the newspaper and on our website. The newspaper reserves the right to withhold letters
that address concerns about individual services and products or letters that infringe on the rights of
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Pendleton, OR 9780, or email
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