What is the government's burden in ineffective assistance cases?

2. The government's burden. The government has neither the burden of going forward nor persuasion until the defendant has established the existence of incompetency and prejudice. At that point it must go forward with such proof as it might have to rebut the existence of incompetency or prejudice. If unsuccessful in its rebuttal efforts the defendant wins a new trial, if successful the conviction is affirmed. This description of the government's burden conforms to that appearing from a reading of the more than a score of ineffective assistance cases this court has decided since Cooper v. Fitzharris.