dissenting:
Precedent in Fifth and Sixth Amendment jurisprudence reflects the need for a reasonable and delicate balance of competing considerations: (1) fundamental procedural rights accorded to criminal suspects; (2) deterrence against odious police tactics that exploit the vulnerabilities of criminal suspects and result in coerced confessions; (3) the right of criminal suspects to initiate conversation with police for the purpose of voluntarily confessing their crimes to law enforcement officers; and (4) the right of individual citizens and their communities to be free from and protected against heinous crimes that bring suffering and death to victims and anguish and grief to their loved ones. Regrettably, from my judicial perspective, the majority opinion in this case creates an unnecessary imbalance in these considerations by expanding existing prophylactic rules and creating a new prophylactic rule which is unjustified on this record.
The new prophylactic rule, however, eviscerates the possibility of the suspect’s voluntary initiation of a conversation with police officers after a break in impermissible interrogation and an opportunity to rest and sleep away from the pressures of the interrogation room. The majority reverses the conviction of a veteran criminal defendant with ten prior convictions who, after a break in impermissible interrogation and an opportunity for sleep and reflection away from interrogators, voluntarily took full responsibility for his violent criminal acts that sent a limited English-speaking female vendor in her eighth decade to the hospital with a swollen face and eyes and bloody nose and mouth. His acts left the victim, her loved ones and the citizens of her community feeling unprotected and vulnerable. Moreover, the reversal of his conviction now forces the government to choose between letting Mr. *1222Dorsey go free, or using its limited resources to retry him in 2013, without his confession as substantive evidence, for a crime committed in May 2005. I simply cannot agree that the new prophylactic rule is a justified expansion of the prophylactic rules adopted by Miranda and Edwards.
The majority articulates the following goals: (1) “clarify the requirements for finding a valid initiation and waiver”; and (2) determine “whether those requirements were satisfied here despite the Miranda and Edwards violations in the interrogation that preceded [Mr.] Dorsey’s confession.” The majority applies the Edwards presumption of involuntariness and concludes that Mr. Dorsey’s initiation is invalid. It is invalid because Mr. Dorsey did not “know[] from his earlier experience [in the interrogation room] that he need only demand counsel to bring the interrogation to a halt.” That is, he was left with the apparent belief that the police would not honor his request for counsel. Thus, says the majority opinion, because the police continued to interrogate Mr. Dorsey in Stage 1 after he asked for a lawyer, and because the majority cannot say that “ ‘[h]is change of heart is less likely attributable to “badgering” than it is to uncoerced deliberation on his part,’ ” his confession may not be used as substantive evidence in another trial (but only for impeachment purposes) — even though his waiver of counsel and his confession were voluntary (but not knowing or intelligent) acts. In essence, the majority opinion asserts that the police “w[ore] down [Mr. Dorsey’s] resistance and ma[d]e him change his mind”; thus, his initiation of the conversation with Officer Crespo was the “delayed product” of police badgering. The majority opinion goes on to hold that the government failed to show that the initiation and waiver requirements of Edwards were satisfied in this case.
For five reasons, I believe that the majority’s analysis is seriously flawed and produces a regrettable imbalance in the competing considerations that I set forth above. First, the majority opinion ignores Shatzer’s caution against an unjustified expansion of the Miranda and Edwards prophylactic rules. As Shatzer put it, “[b]ecause Edwards is ‘our rule, not a constitutional command,’ ‘it is our obligation to justify its expansion.’ ” Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1220, 175 L.Ed.2d 1045 (2010) (citation omitted). As I indicate below, I do not believe that the majority justifies the addition of yet another prophylactic rule. Second, and related to the first point, the majority opinion ignores Montejo’s and Shatzer’s emphasis on the need to assess the benefits and costs of a prophylactic rule. Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), teaches that when a court “creates a prophylactic rule in order to protect a constitutional right, the relevant ‘reasoning’ is the weighing of the rule’s benefits against its costs.” Id. at 793, 129 S.Ct. 2079. Moreover, “ ‘[t]he value of any prophylactic rule ... must be assessed not only on the basis of what is gained, but also on the basis of what is lost.’ ” Id. (citation omitted).
Shatzer reminds us that “[a] judicially crafted rule is ‘justified only by reference to its prophylactic purpose,’ and applies only where its benefits outweigh its costs.” 130 S.Ct. at 1220 (citations omitted). Clearly, the “fundamental purpose” of the Edwards rule “is to preserv[e] the integrity of an accused’s choice to communicate with police only through counsel, by preventing] police from badgering a defendant into waiving his previously asserted Miranda rights.” Id. (internal quotation marks and citations omitted). But, the benefits of the new prophylactic rule an-*1223nouneed in the majority opinion must be “measured by the number of coerced confessions it suppresses that otherwise would have been admitted.” Id. (citing Montejo, supra, 556 U.S. at 798, 129 S.Ct. 2079).
Here, the new rule provides, in essence, that a suspect’s initiation of a conversation with police is presumptively invalid following impermissible interrogation, and the confession must be deemed the “delayed product” of “badgering” where it is “reasonably attributable to the post-invocation questioning” after the suspect has requested counsel.1 The record shows that the trial court made a factual finding that Mr. Dorsey’s confession was not coerced and the majority opinion holds that “the government met its burden of showing the voluntariness of [Mr.] Dorsey’s waiver and confession.” Thus, on this record the expansion of the Edwards rule affords no benefit from suppressing a coerced confession. Perhaps the benefits of the new rule are grounded in precluding impermissible interrogation during police interview sessions with a suspect that precede the suspect’s subsequent initiation of contact with the police, but the rule would then punish all police officers for the misdeeds of some. We cannot overlook the fact, however, that the majority’s expansion of the Edwards prophylactic rule on the record in this case substantially increases its costs, which is “the in-fact voluntary confessions it excludes from trial, and the voluntary confessions it deters law enforcement officers from even trying to obtain.” Shatzer, supra, 130 S.Ct. at 1222. “Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Id. (internal quotation marks and citations omitted).
Third, the majority inappropriately applies the Edwards presumption to the record in this case. “The rationale of Edwards is that once a suspect indicates that ‘he is not capable of undergoing [custodial] questioning without advice of counsel,’ ‘any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Shatzer, supra, 130 S.Ct. at 1219 (quoting Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988)). In an effort to establish that Mr. Dorsey’s initiation of a conversation with the police — after he was taken out of the interrogation room, moved to a cell, and had an opportunity for sleep and reflection — was the “delayed product” of “badgering,” the majority opinion includes twenty-five pages of detailed, dramatic reiteration of the Stage 1 interrogation that the government readily conceded violated Miranda and Edwards.
In my view, the majority opinion’s theory that Mr. Dorsey’s initiation of the conversation with police manifested the “inherently compelling pressures” of custodial interrogation and was not his “purely voluntary choice” is not substantiated by this *1224record. The trial court specifically found that because he has “at least ten convictions,” Mr. Dorsey is not “a novice to the criminal justice system.” Rather, he is “a seasoned veteran when it comes to these criminal proceedings, given the number of convictions he has.” In short, he is not a vulnerable, first, second or third time suspect, nervous and inadequately prepared for intense interrogation that blatantly violates a suspect’s fundamental rights. Indeed, Mr. Dorsey’s own comments during his Stage 1 interrogation, which resulted in no confession, support the trial court’s characterization of him as “a seasoned veteran” of the criminal justice system. When a police interrogator accused Mr. Dorsey of robbing an old woman, he responded: “I don’t know what you are talking about here.... When you say I robbed somebody, just put me back there and we’ll go to court. You know I’m used to that.” When a photograph was taken of Mr. Dorsey during a pause in the interrogation, he stated: “He’s trying everything in the book. I don’t know what he’s trying now.” When the interrogators made statements about Mr. Dorsey’s mother, he maintained, “I’m going to court.” After the interrogators persisted with their theme about Mr. Dorsey’s mother and church, he indicated that he wanted to sleep and that he “should [have] just got a lawyer.” He also talked about going to court. After he confessed during the Stage 2 interview, Mr. Dorsey said to Officer Crespo: “I know y’all [did not have a] case on me. I could have probably gone to court and beat it anyway.”
Fourth, as the majority opinion indicates, the new prophylactic rule it announces is not a per se rule; rather, it is one which necessitates a case-by-case factual inquiry. The rule thus has obvious potential for confusing, conflicting, and fact-intensive panel opinions based upon the subjective views of appellate judges as to whether the government failed to sustain its burden of proof to show that a suspect’s initiation of conversation with the police “was not reasonably attributable to the post-invocation questioning.” The danger spawned by the new judicially-created rule is that this appellate court will transform itself into a quasi-trial court, in these types of cases, as it sifts through and rehashes facts developed and considered in our trial court.
Fifth, the new prophylactic rule is founded upon a weak stone. State v. Yoh, 180 Vt. 317, 910 A.2d 853 (2006), is the only case cited by the majority in support of its standard that “the government must show that [initiation] was not reasonably attributable to the post-invocation questioning.” Interestingly, Yoh did not result in the reversal of Mr. Yoh’s conviction for the murder of his wife, because his actions in initiating conversation with the police and in confessing were voluntary. Id. at 863. The court stated: “If appellant had confessed in the second interview, our analysis would be quite different, but instead, he confessed in the third interview, after giving every indication that he understood his rights and was choosing not to exercise them.” Id. The court did not apply Edwards ’ presumption of invalidity, even though one could see a direct connection between the impermissible interrogation in which the police made repeated references to Mr. Yoh’s family, and his decision to confess. Before confessing, Mr. Yoh talked about his family, telling a Pennsylvania state trooper: “ ‘If you can keep those guys [meaning the state troopers] off my family, I will tell them everything they want to know.’ ” Id. at 858. In contrast, Mr. Dorsey did not parrot the Stage 1 interrogators’ words when he confessed. He used his own words, saying that he did not know that the victim was “that old” and emphasizing that he had *1225“never [before] robbed a woman in [his] life.” For those reasons, this seasoned veteran of the criminal justice system was remorseful and voluntarily confessed.
The sequel to the Yoh state case also is instructive, and again shows that the majority’s new prophylactic rule is founded on a weak stone. Subsequent to the state decision in Yoh, Mr. Yoh sought federal habeas corpus relief. He challenged the trial court’s failure to suppress his confession. He contended that “his confession is both presumptively invalid under the prophylactic rules of Miranda and its progeny, and actually involuntary under traditional notions of due process.” Yoh v. Pollito, No. 1:09-CV-18, 2009 U.S. Dist. LEXIS 12167, at *15, (D.Vt. Nov. 4, 2009), aff'd and adopted by 2009 WL 5218070, at *1, 2009 U.S. Dist. LEXIS 121616, at *1 (D.Vt. Dec. 30, 2009). While recognizing “judicial concerns of police ‘badgering”’ and the fact that “claims of ‘suspect initiation’ ” may “lack credibility in both substance and form,” the federal court declared: “But it is an entirely different matter to extend the presumption over those cases in which the tainted interrogation comes to a definitive end, and, while outside the presence of his interrogators, the suspect changes his mind and decides to speak with the police once again.” Id. at *20. Furthermore, the court declared that “the badgering justification carries far less weight in cases where the badgering ostensibly does not work, that is, when the police give up and end the interrogation having received neither a waiver nor a confession, and subsequent custodial statements come only at the suspect’s request.” Id. *31-32. Here, the police badgering in Stage 1 did not work, as Judge Thompson pointedly and clearly establishes. Rather, Mr. Dorsey skillfully deflected every police tactic designed to extract a confession from him; and he had time to sleep and reflect alone before initiating conversation with Officer Crespo and confessing.
In short, I believe that the majority’s expanded and new prophylactic rule is unjustified on this record. It creates an unnecessary imbalance in competing considerations in Fifth and Sixth Amendment jurisprudence, considerations designed to protect the fundamental rights of suspects, their rights to voluntarily initiate contact with the police to confess, society’s desire to curb impermissible interrogation, and the right of individual citizens and their communities to be free from and protected against heinous crimes. But, even assuming that the majority is correct and that Dorsey is an appropriate case for the announcement of an expanded and new prophylactic rule, Judge Thompson’s cogent analysis shows that the government met its burden of proof under the standard articulated by the majority. Therefore, I respectfully dissent, and I also join Judge Thompson’s dissent.
. The majority opinion disclaims any new prophylactic rule or expansion of an existing prophylactic rule. Although characterized as a "clarif[ication] [of] the requirements for finding a valid initiation and waiver," what emerges from the majority opinion is a new or expanded prophylactic rule. Here, the trial court specifically found that Mr. Dorsey, not the police, initiated the stage 2 contact. However, the majority opinion declares that that initiation by a seasoned veteran of the criminal justice system is presumptively invalid because, in the view of the appellate majority, the initiation resulted from Mr. Dorsey’s delayed reaction to badgering (that is, his initiation is reasonably attributable to badgering), even though his subsequent (his first and only) confession was voluntary, and even though there is no factual record to support the majority’s theory.