What is the current state of the law in the context of a direct appeal?

The principal argument for doing otherwise is that on direct appeals we can assert our inherent supervisory powers and avoid applying the demanding constitutional commands of the Sixth Amendment which were recognized in Cooper v. Fitzharris. Utilization of our supervisorial powers would enable us, the argument continues, to fashion a standard of competency of a reasonably particularized and objective sort. Undoubtedly a checklist would emerge by which competency would be determined in an objective and somewhat mechanical fashion.

We decline to undertake the task of designing this checklist to be employed in direct appeals just as we did in Cooper v. Fitzharris for collateral attacks on convictions. The administration of a checklist would be difficult; the pressure to add deficiencies to those already requiring automatic reversal of a conviction would be great and, without regard to the length of the checklist, the coexistence of incompetency and prejudice would require reversal in any event. Finally, we simply do not agree that nonprejudicial acts of incompetency of counsel should be a basis for reversal of convictions even when brought to the attention of the court on direct appeal. As we said in Ewing, fairness of the trial is the touchstone, not compliance with an objective standard of competence. The trial and conviction of wrongdoers in a constitutional manner, although perhaps not in a professionally impeccable one, is more important than employing the criminal justice system as a post-admission training facility for attorneys.

B. The Absence of Prejudice