(dissenting):
I dissent.
It is indeed perplexing to me that at this late date, almost four and one-half years after the applicable date of the Supreme Court’s decision in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966) (see Johnson v New Jersey, 384 US 719, 16 L Ed 2d 882, 86 S Ct 1772 (1966); cf. United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967)), we seem reluctant to fully apply the principles of Miranda. In a series of analyses and rationalizations, to which I cannot subscribe, my brothers find that the accused, in this case, was fully informed of his rights concerning counsel at the interrogation, and that he knowingly, intelligently, and voluntarily waived those rights. For this reason, they hold that his pretrial statement was properly admitted into evidence. I disagree.
The issue before us is relatively simple. The offense occurred on November 9th and the accused was placed in administrative restriction the next day. A formal charge of robbery was lodged against him on November 16th. He was notified of the accusation the same day and placed in pretrial confinement on November 21st. On November 19th, the “accused’s appointed defense counsel”1 was directed to represent the accused at the taking of an oral deposition from the victim, for the convenience of the Government, since the victim was due to rotate to the United States on or about November 24th. Trial counsel was directed to represent the Government. The deposition was taken on November 21st with the victim, the accused, trial and defense counsel, and the deposition officer all present. However, on the previous day, November 20th, without notification to appointed defense counsel, two Army investigators interviewed the accused and, after warning him of his right to counsel in accordance with the provisions of Miranda v Arizona, supra, obtained a statement from the accused in which he admitted participating in the robbery of *208the victim. The agents denied knowing that counsel had already been appointed to represent the accused prior to the time of the interview.
At trial, defense counsel objected to the admission of the accused’s statement in evidence on the ground that the accused had been interviewed without prior notification to his counsel, in violation of paragraph 446, Manual for Courts-Martial, United States, 1951. (See also United States v Grant, 26 CMR 692 (ABR 1958); United States v DeLauder, 8 USCMA 656, 25 CMR 160 (1958).) Defense counsel asserted that had he been notified, he would have refused them permission to interview his client. The accused testified that while he consented to answer questions and stated at the time that he did not want counsel, had he known of the prior appointment of counsel by the convening authority, he would not have consented to being interviewed. It was the basic argument of the defense that since the Government, consisting of the Commanding General, the Staff Judge Advocate, and trial counsel, was aware that counsel had been appointed to represent the accused; that the agents were chargeable with this knowledge; that the agents misinformed the accused when they told him only that he had a right to consult counsel; that since counsel had already been appointed, they should have so informed him and asked whether he wanted consultation with his counsel before submitting to questioning; that the accused could not voluntarily and intelligently waive his right to counsel unless he was aware of all of the facts concerning his situation, i. e., that counsel had already been appointed to advise and assist him regarding the charges. The law officer overruled defense counsel’s objection on the ground that he found no evidence that the agents acted in bad faith in obtaining the statement; nor did he find anything else that would vitiate an otherwise voluntary statement on the part of the accused.
Supreme Court decisions have made it perfectly clear that an accused is entitled to the advice and assistance of counsel at all critical stages of the criminal proceedings. See generally, Miranda v Arizona, supra; Gideon v Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR2d 733 (1963); Escobedo v Illinois, 378 US 478, 12 L Ed 2d 977, 84 S Ct 1758 (1964); Massiah v United States, 377 US 201, 12 L Ed 2d 246, 84 S Ct 1199 (1964); United States v Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926 (1967); Gilbert v California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951 (1967); McLeod v Ohio, 378 US 582, 12 L Ed 2d 1037, 84 S Ct 1922 (1964); 381 US 356, 14 L Ed 2d 682, 85 S Ct 1556 (1965). As the Supreme Court stated in Wade:
. . The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecutions. Cf. Pointer v Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065.” [Id., 388 US, at page 227.]
The interview of an accused, charged with robbery, by criminal investigators is obviously a critical stage in the proceedings.
In Massiah v United States, supra, the Supreme Court held inadmissible a statement of the accused obtained in the absence of his counsel. Massiah had been indicted, retained a lawyer, and was free on bail. Unaware that a co-defendant, cooperating with Government agents, had allowed the installation of a radio transmitter under the front seat of the automobile in which they were seated, Massiah made incriminating statements to the co-defendant which were overheard by a Federal agent. The use of the agent’s testimony at trial, relative to this conversation, was held to violate Massiah’s right to counsel under the Sixth Amendment. Gf. Escobedo v Illinois, supra.
McLeod v Ohio, supra, presents another facet of the admissibility of a statement obtained outside the presence of counsel. McLeod had been indicted for murder in the first degree on October 3, 1960. On October 11, 1960, be*209fore he procured, requested, or was assigned counsel, McLeod voluntarily made an oral confession in the presence of a deputy sheriff and an assistant prosecuting attorney while riding around in the sheriff’s automobile searching for the gun used in the holdup. The Supreme Court of Ohio, distinguishing Massiah, affirmed the conviction on the ground that the statement was willingly made in the known presence of public officers. There was no evidence that McLeod had, prior to confessing, been informed of his right to counsel. Without comment, the Supreme Court reversed in McLeod (381 US, at page 356) by memorandum opinion simply citing Massiah.
Massiah was held applicable in Clifton v United States, 341 F 2d 649 (CA 5th Cir) (1965), in a strikingly similar situation to that under consideration here. Clifton, who was then only nineteen years of age, was arrested for a state traffic violation. Three days later he was taken before a committing magistrate for a preliminary hearing on a Federal charge of the interstate transportation of a stolen automobile. Unable to post bond, he was incarcerated until the date of his trial in Federal court four months later. Counsel was appointed to defend Clifton within a month of his incarceration and visited with him in the county jail on numerous occasions.2 Two months after the appointment of counsel, and prior to the return of an indictment, Clifton was interviewed by FBI agents, one of whom testified at trial that he advised Clifton of his rights at the outset of the interview. It is undisputed that the FBI agents made no attempt to determine whether Clifton had an attorney. While finding both Massiah and Escobedo factually distinguishable, the court held Clifton’s statement to the FBI agents inadmissible on the basis of the rationale of those opinions. As the court said at pages 652 and 653:
“Escobedo and Massiah represent a broad indorsement by the Supreme Court of the right to have counsel present during an interrogation once the investigation has begun to focus on a particular suspect. Here this was clearly the case, for appellant had been confined to a cell for nearly three months awaiting the action of the grand jury. Hence, any interview would have been directed only to obtaining evidence to be used in prosecuting the appellant, not in ascertaining whether or not there was probable cause to believe a crime had been committed.8 We think the interview of February 3 was a time when legal advice was critical to appellant, particularly when his age and inexperience are taken into account. In the circumstances of this case, a duty devolved upon the interviewing agents to make a reasonable effort to ascertain whether appellant had counsel and to determine whether he desired that counsel be present at the interview. It seems clear that in the instant case a reasonable inquiry would have disclosed that appellant had an attorney and that he was readily available if appellant had desired that he be present. The burden of making such an inquiry is not unreasonable where, as here, the defendant is young and obviously unschooled in the intricacies of the law and where he had been incarcerated for over two months, unable to contact his attorney at will.9
“While we hold that interrogating officers must make some reasonable attempt to ascertain whether such an accused has an attorney and desires that he be present, we do not reach the question of admissibility where the accused has clearly and unequivocally waived the right to consult his attorney10 or where the accused has no attorney and has requested none after being clearly advised of his rights.11 The record in this case discloses that the interviewing officers should have known that the accused was represented by counsel, and that they made no reasonable effort to ascertain whether *210he desired to consult with his attorney. In the particular circumstances of this case, their failure in the above respect constitutes a denial of the guaranties of the sixth amendment. Hence, any incriminating statement made at the interview cannot be admitted into evidence at his trial.
See also Queen v United States, 335 F2d 297 (CA DC Cir) (1964); Schantz v Eyman, 418 F2d 11 (CA 9th Cir) (1969).
McLeod was discussed at length in Hancock v White, 378 F2d 479 (CA 1st Cir) (1967), where the Court of Appeals held that the rule of Massiah required exclusion of that defendant’s post-indictment incriminating statements, even though they were not procured by interrogation but were volunteered and the defendant was not imposed upon by any false statement, trickery, or subterfuge.
The capstone of Massiah and Escobe-do was, of course, Miranda v Arizona, supra, where the Supreme Court detailed the necessity for a proper warning to an accused of his right to counsel and stated :
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v Illinois, 378 US 478, 490, note 14, 12 L Ed 2d 977, 986, 84 S Ct 1758. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357 (1938), and we re-assert these standards as applied to in-custody interrogation.” [Miranda, supra, at page 475.]
In my opinion, the Government in this case has not demonstrated that this accused “knowingly and intelligently waived his privilege against self-incrimination.” True enough, he was given a recitation of his right to the advice and assistance of counsel at the interview but one most important aspect of that advice was lacking — the fact that counsel had already been appointed to defend him and was at that very time on his way to the place of interrogation. The Government asserts that the investigating agents were not aware of this information and should not be held accountable for this lapse. Whether personally accountable or not, they represent the Government and as the court said in Barbee v Warden, Maryland Penitentiary, 331 F2d 842, 846 (CA (CA 4th Cir) (1964):
*211. . The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure. If the police allow the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State’s Attorney but on the court and the defendant. ‘The cruelest lies are often told in silence.’ If the police silence as to the existence of the reports resulted from negligence rather than guile, the deception is no less damaging.” [See cases cited in footnotes 9, 10, and 11, at page 846.]
Cf. Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963); Jackson v Wainwright, 390 F2d 288 (CA 5th Cir) (1968); United States v Poole, 379 F2d 645 (CA 7th Cir) (1967); Ingram v Peyton, 367 F2d 933 (CA 4th Cir) (1966).
Since the trial counsel is precluded from interrogating the accused without permission of defense counsel, once the latter has been appointed (paragraph 44h, Manual, supra), the same proscription should rest upon anyone involved in the investigation or trial of the case. A contrary conclusion would, in my opinion, permit circumvention of constitutional and statutory rights. In this case, the investigating agents were aware that charges had been placed against this accused as they were investigating those charges. It would have been a simple matter to determine that counsel had been appointed to defend the accused. The answer is as close as the nearest telephone. Cf. Clifton v United States, supra.
The personnel handling the case for the Government should have advised the accused at the time counsel was appointed to defend him. Again, the means is as close as the nearest telephone. The accused testified, as noted above, that such advice would have kept him from giving a statement prior to consulting counsel. A full and complete advice, clearly detailing and tailoring the rights to the given situation, was made mandatory in Miranda. See United States v Stanley, 17 USCMA 384, 38 CMR 182 (1968). Since the advice was incomplete, there can, in my opinion, be no valid waiver. This places no undue burden on the Government (Miranda v Arizona, supra) nor does it operate to subvert the judicial processes, for as the Supreme Court stated in Tehan v Shott, 382 US 406, 415, 15 L Ed 2d 453, 86 S Ct 459, rehearing denied, 383 US 931, 15 L Ed 2d 850, 86 S Ct 925 (1966) :
“. . . [T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load.’ ”
I cannot leave this matter without additional comment. We deal, in this case, not with a hardened criminal or a sophisticated person, but with an untutored accused, who, although twenty-three years of age, had completed only ten years of schooling. His military occupation was that of cook. On a date less than one month before the completion of his three-year enlistment he allegedly robbed another serviceman of his wallet containing approximately $250.00 in cash. Since the offenses occurred in Germany and the accused’s home was in North Carolina, he was unable to look to relatives and lifetime friends for advice and assistance. His only recourse was to depend upon his military superiors.
The dependence of a serviceman on his military superiors calls for more than a strict adherence by them to rules and regulations — it presupposes a paternalistic and sympathetic interest and attitude toward one who, by reason of service to his country, has been removed by order of the Government from his relatives and friends and placed in an environment alien to his former way of life. Those concerned with military justice should be especially zealous in protecting the *212rights of those servicemen who come within the purview of the court-martial system. Anything less must necessarily be viewed as an abandonment of responsibility.
On the basis of my analysis of this case, as set forth above, I would hold that the accused’s pretrial statement was inadmissible in evidence. I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.
The actual date of this appointment is not clear in the record but it was sometime between the 16th and the 19th.
Clifton testified at trial that he repeatedly requested persons at the jail to telephone counsel and they neglected to do so.
“8 See Lee v United States (5 Cir 1963) 322 F2d 770, 776.
“9 Although we do not assume in this opinion that FBI agents are lawyers, we think that once the process has shifted from investigation to accusation the well-recognized practice in civil litigation serves as an appropriate analogy:
‘16. COMMUNICATIONS WITH OPPOSITE PARTY.
‘A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel, except in cases where opposing counsel has expressly consented to such communications or negotiations. * * *’
“American College of Trial Lawyers, Code of Trial Conduct, Canon 16. See also American Bar Association, Canons of Professional Ethics, Canon 9.
“10 While the paper that Clifton signed contained the statement, T realise (sic) * * * that I have a right to an attorney,’ this cannot be deemed a clear and unmistakable waiver in light of appellant’s age, experience, and circumstances here evident. See Johnson v Zerbst, 304 US 468, 58 S Ct 1019, 82 L Ed 1465 (1938).
"11 por a reeent case in point, see Jackson v United States (DC Cir 1964) 337 F2d 136.”