Defending From Beyond the Grave
Let’s be clear. When I talk about lawyering from beyond the grave, I don’t mean becoming a zombie and sucking out the brains of prosecutors. Nor do I mean dragging heavy chains above the bedrooms of certain judges while they’re sleeping, hiding their house keys and messing with their DVRs so that they miss key scenes of their favorite shows. Instead, I mean using your last will and testament to keep challenging the criminal justice system.
Roberta Nieslak, the Deputy Director of the Colorado State Office of the Alternate Defense Counsel, introduced me to this ingenious idea. She added a codicil to her will, which essentially allows her to continue fighting against the death penalty even after she passes away. In the unfortunate event that she is killed and the state seeks to execute the person they believe is responsible for her death, her codicil demands that all parties to the case be notified of her adamant opposition to capital punishment. The language she uses is as follows:
Declaration of Belief Regarding Death Penalty
I, Roberta M. Nieslanik, having devoted my law career to defending the rights of criminally accused persons not to be put to death by the STATE in the name of retribution, do hereby state:
Should I be the victim of violent crime that results in my death, I pursuant to all victims’ rights legislation demand that my agent or family inform the district attorney, the presiding judge and the defense lawyer that I DO NOT WISH FOR THE DEATH PENALTY TO BE SOUGHT OR IMPOSED IN THE CASE OF MY DEATH.
Furthermore, should the state proceed in opposition to my wish, I desire and demand that the following excerpt be read to the jury during the mitigation phase of any penalty phase.
She then includes a short, powerful statement explaining that to execute someone accused of harming her would denigrate her life's work and thus her memory.
Naturally, you should contact an estate lawyer or at least dust off your bar review texts to learn the requirements for making a valid change or amendment to your will in your state.
Modifying wills may not be as thrilling as transforming into zombies and poltergeists, I admit. Adding such a codicil with one’s own personal statement, however, is one way to add in perpetuity to the growing chorus against the death penalty. Hopefully most of us will live long enough that to see these codicils become moot after we add them.