There should be a general requirement to preserve biological evidence and an opportunity for law enforcement, upon notice to an inmate, to move for destruction of the evidence in an orderly way. This would not only preserve the rights of inmates to produce proof of their innocence through DNA testing, but help law enforcement re-test old cases to catch the real perpetrators. There Must Be More Funding to Provide Competent Counsel, Especially in Capital Cases. Recent revelations reported by the Chicago Tribune about the lack of adequate counsel for inmates on Death Row in Illinois and Texas are troubling but not surprising. The American Bar Association has long been on record about this crisis, and in our book, Actual Innocence, we discuss at great length the terrible problem of incompetent counsel we found among the individuals exonerated with post-conviction DNA testing.
Nothing guarantees the conviction of the innocent more than a bad or underfunded lawyer.
We have to rely on the adversary system, and the key to that system is a defense lawyer who is qualified, has adequate funds for investigation and experts, and is compensated well enough to provide good representation. I strong support those sections of the Leahy - Smith bill that provide for standards and more funding for counsel. Should Remain Flexible. In the vast majority of post-conviction DNA exonerations some form of DNA testing was, in theory, available to the defendant at the time of trial. In some instances the form of DNA testing available was not sensitive enough to produce a result, but later testing was able to produce irrefutable evidence of innocence.