(concurring in the result):
I concur in the holding that the appellant was deprived of the effective assistance of counsel and that his conviction should be reversed. The appellant amply has established that his counsel at trial was incompetent and that his right to a fair trial was prejudiced. That is enough to entitle him to a reversal. That is all that need be said.
Regrettably more has been said and because of this I, also regrettably, will say more. The test for ineffective assistance in this circuit has been and remains drawn from Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 *596(1979). The en banc court in Cooper v. Fitzharris established a two-part inquiry into ineffectiveness of counsel: first, the defendant must show he was denied “reasonably competent and effective representation,” id. at 1327; second, “where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense,” id. Judge Alarcon does not disagree with this.
Incompetent counsel was described in Cooper v. Fitzharris as one that made “errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made.” Id. at 1330. Also presence of such counsel was distinguished from situations in which there was no counsel or in which “counsel was prevented from discharging his normal functions.” Id. at 1332. The verb “prejudice” was used without modifiers.
The burdens placed on the defendant and the government under Cooper v. Fitzharris are as follows:
1. The defendant’s burden. In this circuit the defendant has the burden of showing “prejudice” or “actual prejudice” from the errors of counsel. The en banc court in Cooper v. Fitzharris did not state specifically the quantum of proof necessary to demonstrate the existence of prejudice. However, this court has described repeatedly the defendant’s burden as one of showing actual prejudice. See Brown v. United States, 665 F.2d 271, 273 (9th Cir.1982) (Tang, J., concurring) (describing Cooper as “actual prejudice” test); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980) (Cuyler v. Sullivan showing of adverse effect not same as Cooper showing of “actual prejudice”), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); United States v. Coupez, 603 F.2d 1347, 1350 (9th Cir.1979) (stating requirement as “actual prejudice”); see also United States v. Winston, 613 F.2d 221, 224 (9th Cir.1980) (no “substantial prejudice” from counsel’s failure to inform accused of judge’s participation in competency hearing); Lewis v. Cardwell, 609 F.2d 926, 928-29 (9th Cir.1979) (also using “substantial prejudice” standard). Also the standard repeatedly has been described more simply as one of showing prejudice.1 The difference between “prejudice” and “actual prejudice” apparently has been thought to be the same as between “pregnancy” and “actual pregnancy” — nonexistent.
Some might read Judge Alarcon’s opinion as indicating that he discerns what others have not seen. I think such a reading would be mistaken. He makes no change in the prejudice standard. See pp. 587, 588, 591, 593, 594, 595. It is true he describes the defendant’s burden alter-' natively as one of showing denial of a fair trial, see pp. 588, 589, 593, 594, 595, or an impairment of the defense, see pp. 586, 587, 588. And it is also true that he goes to great lengths to dismiss those cases describing the Cooper v. Fit*597zharris test as one of actual prejudice. See pp. 590-591 & n. 30. However, he returns to the proper baseline when he admits that the standard is one of real, not imagined, prejudice, p. 591, and when he criticizes the “actual prejudice” test because of its “rhetorical surplusage,” P. 592. Thus, although it is clear Judge Alarcon prefers “prejudice” to be unmodified, a stylistic preference to which I also subscribe, I conclude he sees no difference between actual prejudice and prejudice simpliciter.
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.
It is fair to say that Judge Alarcon does not believe that this is a complete description of what might be described as either the “government’s right” or the “government’s burden.” As he sees it, after the defendant successfully has established ineffective assistance and prejudice the government must “bear the burden” of persuading the court beyond a reasonable doubt that the counsel’s errors and omissions did not deprive the defendant of a fair trial. P. 588. In short, he wheels into place the test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), although he acknowledges that the en banc majority in Cooper v. Fitzharris neither invoked it, nor referred to it, and that it only appeared in Judge Hufstedler’s dissent. See 586 F.2d at 1340-41 (Hufstedler, J., joined by Ely & Hug, JJ., dissenting in part).
From an analytic point of view one must acknowledge that under Chapman the government always has the right to attempt to show that a constitutional error in the process by which the defendant was convicted was harmless beyond a reasonable doubt. A difficulty with its injection into the ineffective assistance setting is that it provides the government with neither an arrow nor a bow with strings. Assuming the defendant has established prejudice there is little or no chance the government will be able to show it to have been harmless. Discharge by the defendant of his burden forecloses Chapman as a useful affirmative defense by the government. There may be hypothetical situations that can be imagined in which this would not be so; however, I have not been able to think of any.
Injection of Chapman into this area, however, can have an effect perhaps more to Judge Alarcon’s liking. That is to reduce the magnitude of the defendant’s burden with respect to the showing of prejudice. This effect would constitute an example of what might be called jurisprudential hydraulics. As has been observed by many, a rigid divorce law creates a flexible law of annulments. Similarly here; treating Chapman as a burden of the government will tend to reduce the burden of the defendant to show prejudice. The same point may be put differently. If Chapman had a large role to play in ineffective assistance cases it must be because the defendant’s burden with respect to prejudice is fairly small. Put philosophically, prejudice and Chapman function as the Yin and Yang in the ineffective assistance area. Perhaps the realization of this relationship helps explain Judge Alarcon’s distaste for “actual” as a modifier of “prejudice.” But perhaps not.
In any event, Judge Alarcon’s reliance on McNulty v. dim, 652 F.2d 1369 (9th Cir. 1981), is misplaced. As one who sat on the court that decided the case, I am confident that Judge Alarcon attributes to it an unintended effect. That would not be improper if its language supports his attribution. It does not. The case was not concerned with Chapman; no mention of Chapman appears in the opinion. The district court sought to *598force the court to refine further the quantum of proof necessary to establish the existence of prejudice. The court was able to decline the invitation because under either of the formulations offered by the district court, from whose judgment the defendant was appealing, the defendant had failed to establish the existence of prejudice. The court made clear in the course of the opinion, however, that it was discussing the defendant’s burden of establishing incompetency and prejudice. See id. at 1370-71. Moreover, we did suggest that, in addition to the two formulations offered by the district court, another might be whether prejudice was established with reasonable certainty. It is true that we stated the standard in a negative, rather than a positive, fashion. We said:
This strongly suggests that the proper test might well be whether the absence of prejudice is established with reasonable certainty.
Id. at 1371. A positive mode of expression would have been:
This strongly suggests that the proper test might well be whether prejudice is established with reasonable certainty.
The negative mode employed should not be understood to have been an attempt to diminish the defendant’s burden by enlarging Chapman’s role. In sum, it is quite wrong to conclude that “under the McNulty dictum ..., the government has the burden of convincing this court to a reasonable certainty that no prejudice occurred as a result of counsel’s errors or omissions appearing in the record.” P. 588.
When all is said and done Judge Alarcon, Judge Ely, and I agree that in this case the Cooper v. Fitzharris test has been met. Judge Alarcon vacillates somewhat but in the end I think he and I agree as to defendant’s burden to establish prejudice. Judge Ely, at least in his heart, parts company with us on that point. Judge Alarcon and I differ somewhat concerning the proper role of Chapman. If we put that difference on one side of Justice’s scale and a feather on the other, I would wager the balance would tip toward the feather.
. For other cases stating the prejudice requirement without finding it unsettled, see United States v. Coleman, 707 F.2d 374, 376 (9th Cir. 1983); United States v. Christopher, 700 F.2d 1253, 1261 (9th Cir. 1983); Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982); United States v. Gibson, 690 F.2d 697, 704 (9th Cir. 1982), cert. denied, - U.S. -, 103 S.Ct. 1446, 75 L.Ed.2d 801 (1983); Hudson v. Rush-en, 686 F.2d 826, 832 (9th Cir.1982), cert. denied, -U.S.-, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983); Hall v. Sumner, 682 F.2d 786, 787 (9th Cir.1982); Powell v. Spalding, 679 F.2d 163, 167 (9th Cir.1982); Fritchie v. McCarthy, 664 F.2d 208, 214 (9th Cir.1982); United States v. Dorm, 661 F.2d 820, 824 (9th Cir.1982) (per curiam); Hines v. Enomoto, 658 F.2d 667, 675 (9th Cir.1981); Satchel1 v. Cardwell, 653 F.2d 408, 409 (9th Cir.1981), cert, denied, 454 U.S. 1154, 102 S.Ct. 1026, 71 L.Ed.2d 311 (1982); United States v. Mayo, 646 F.2d 369, 373 (9th Cir.) (per curiam), cert. denied, 454 U.S. 1127, 102 S.Ct. 979, 71 L.Ed.2d 115 (1981); United States v. Altamirano, 633 F.2d 147, 152-53 (9th Cir.1980), cert, denied, 454 U.S. 839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980); United States v. Williams, 624 F.2d 75, 77 (9th Cir. 1980); United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980); Ewing v. Williams, 596 F.2d 391, 395 (9th Cir.1979); United States v. Currie, 589 F.2d 993, 995 (9th Cir.1979).