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Constitutional claims of incompetent counsel arise when a criminal defendant attacks his conviction on the ground that it was obtained at a trial at which he was represented by incompetent counsel.' The courts disagree over both the source and the scope of any constitutional requirement that counsel be competent. Most courts find a right to competent counsel in the sixth amendment, but require the defendant who seeks to establish a violation of that right to show both that counsel was incompetent and that, but for counsel's incompetence, the defendant might have been acquitted. Other courts that rely on the sixth amendment only require the defendant to show that counsel was incompetent in order to obtain a new trial. Still other courts find no right to competent counsel in the sixth amendment at all. These courts view questions of counsel incompetence as a form of attack on a verdict under the fair trial guarantee of the due process clause. Accordingly, these courts require the defendant to show that counsel's alleged incompetence denied the defendant a fair trial.2 This comment will argue that the history and subsequent Supreme Court interpretation of the sixth amendment do not support any sixth amendment right to competent counsel other than a right to the appointment of counsel who appears, at the time of appointment, to be capable of mounting a competent defense (counsel who appears competent "ex ante"). Any attempt to read

Effective Assistance of Counsel: The Sixth Amendment and the Fair Trial Guarantee