(dissenting):
At trial appellant moved to suppress the incriminating statements he had given to civilian detectives on July 31 and August 3. He contended that his right to counsel had been violated. The military judge denied the motion, but I conclude that he erred in doing so.
To place the issue in perspective, it should be recognized that the statement made on July 31 to Detective Griggs of the Chesapeake Police Department was the product of a lengthy joint investigation in which Griggs had been engaged with Special Agent Cashman of the Naval Investigative Service (NIS). In fact, the two investigators had travelled together to Italy in May 1985 and had jointly interrogated appellant and many others.
In late July, appellant had given an incriminating statement to another NIS agent and had been returned to Norfolk, where on July 28 the Navy had placed him in pretrial confinement. I agree with the lead opinion that this confinement did not initiate formal adversarial proceedings that would trigger Jordan’s Sixth Amendment right to counsel, and it did not bring Article 27 of the Uniform Code of Military Justice, 10 USC § 827, into play. However, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the confinement created for appellant a Fifth Amendment right to counsel with respect to any interrogation that followed while he remained in custody.1
On the morning of July 31, Jordan conferred for about 2 hours with Lieutenant Stallings, a military lawyer who had been assigned to represent him. The lead opinion observes that, pursuant to RCM 305(f), Manual for Courts-Martial, United States, 1984, Lieutenant Stallings was “assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred.” 29 M.J. at 184. However, this observation does not conform fully with the rule which, in its entirety, states:
If requested by the prisoner, military counsel shall be provided to the prisoner before the initial review under subsection (i) of this rule. Counsel may be assigned *190for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred. If assignment is made for this limited purpose, the prisoner shall be so informed. Unless otherwise provided by regulations of the Secretary concerned, a prisoner does not have a right under this rule to have military counsel of the prisoner’s own selection.
(Emphasis added.)
Under this language, military counsel shall be provided “[i]f requested by the prisoner.” Therefore, assuming regularity and compliance with regulations, I infer that Lieutenant Stallings was assigned as counsel for Jordan because he was “requested” by appellant, who was then a “prisoner.” Secondly, even though counsel “may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings,” this language is permissive and indicates that counsel also may be assigned without any limitation as to his representation of the accused. Nothing in the present record of trial indicates that Lieutenant Stallings was assigned “only” to represent Jordan during the pretrial confinement proceedings.
Indeed, all the facts point in the opposite direction. There is no testimony that Jordan was informed that Lieutenant Stallings was assigned only for a limited purpose; and on the morning of July 31, Jordan and Lieutenant Stallings conferred for 2 hours — which would be an unusually long period of time if the assignment of counsel had been “for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred.”
According to the undisputed testimony of Lieutenant Stallings, his supervisor — Commander West — had advised him that he was going to represent Jordan with respect to a murder charge; and, in turn, Lieutenant Stallings had communicated to Commander Grant, the staff judge advocate for the convening authority, that he “had been assigned as the detailed military counsel to represent Spencer Jordan.” Commander Grant testified that Lieutenant Stallings had called at about 9:00 a.m. on July 31 and had informed Grant “that he represented Jordan and that he was going over to the brig to speak with Jordan.”
This testimony makes clear and the judge found that — even though “Lieutenant Stallings was assigned because the accused was in a Navy brig” — the assignment was for the general representation of Jordan in connection with the murder charge.
The lead opinion states that Congress never intended by enacting Article 27 “to inject military counsel into state criminal matters.” 29 M.J. at 185. This conclusion is probably correct; but it has little relevance here. In the first place, the right to counsel involved in this case derives from the Fifth Amendment — as interpreted by Miranda v. Arizona, supra, and applied to military law by United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967)—and not from Article 27 of the Code. Secondly, here the “state criminal matter” was the killing of one servicemember by another— misconduct which also was a serious military crime. Thirdly, because both Virginia statutes and the Uniform Code had been violated, state and military officials had been conducting a joint investigation from the outset. Finally, the challenged evidence ultimately was offered and received in a trial by court-martial — rather than in a state court trial.
The lead opinion also comments that, “[u]nless military counsel are authorized to practice in state courts by state authorities and are given leave from their military duties, they simply have no role in state criminal matters.” 29 M.J. at 185. In the abstract, this observation may be correct; but again it does not pertain to the facts of this case. The misconduct which the state authorities were investigating was also a major crime under the Uniform Code of Military Justice; and instead of being “given leave,” Lieutenant Stallings had been duly assigned by a military superior the duty of representing Jordan in connection *191with the military investigation of that crime. Furthermore, in view of the joint investigation by civilian and military investigators and the concurrent jurisdiction of state and military authorities over the crime, Lieutenant Stallings could not perform effectively his military duty of representing appellant without taking into account the investigation by civil authorities and the possibility that Jordan might be prosecuted in a state court.
Under the Miranda rules, a suspect who is in custody and has requested counsel cannot be interrogated unless and until he has “initiated” a discussion. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). It makes no difference that the request for counsel concerns one offense and the interrogation concerns another that is totally unrelated. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Therefore, even if we treat appellant’s violation of Virginia law as completely separate from the military offense, Roberson teaches that a request for counsel in connection with the military offense would prevent civilian investigators from interrogating Jordan about the state crime, unless he “initiated” a discussion.
Under the language of RCM 305(f), it appears that Lieutenant Stallings was assigned to represent Jordan because appellant “requested” military counsel. Even if the request for counsel had been made only with respect to review of pretrial confinement, I believe that it would constitute a request for counsel within the meaning of Edwards and Roberson. By his request— whatever its form — Jordan made clear his state of mind that, in connection with the murder investigation and any related proceedings, he wished to have the assistance of a lawyer.
Under Roberson, it makes no difference that an interrogator is unaware of a suspect’s earlier request for counsel. 108 S.Ct. at 2101. The focus is on the state of mind of the person questioned, rather than on that of the interrogator. Therefore, inferring as I do that Jordan made a “request for counsel” within the purview of Miranda, Detective Griggs was precluded from questioning him about the murder, unless appellant “initiated” the discussion.
In fact, Detective Griggs had every reason to believe that Jordan had “requested” a lawyer. On July 31, when he went to pick up appellant at the Navy brig, Detective Griggs had to wait for Jordan to finish his 2-hour conference with his lawyer, Lieutenant Stallings.
The lead opinion interprets Miranda, Edwards, and Roberson in a very narrow way; and apparently it concludes that, because there was no evidence of a specific “request” by Jordan for an attorney in connection with the military investigation of the homicide, he could thereafter be interrogated at will by Detective Griggs without providing him counsel. Presumably, the same result would follow if the subsequent interrogation had been by a military investigator.
I disagree with this interpretation. In my opinion, the Navy’s assignment of Lieutenant Stallings to Jordan and acceptance of his services by Jordan constituted the “functional equivalent” of the request for counsel required by Edwards and Roberson. Roberson decided that the focus of attention is on the state of mind of the accused; and establishment of the attorney-client relationship in connection with the pending criminal charges revealed the same state of mind on Jordan’s part that would have been demonstrated by a “request” for counsel. Although I do not believe that the Supreme Court has directly decided this issue, I am convinced that investigators — whether military or civilian— are precluded by Miranda from undertaking pretrial custodial interrogation of a suspect who is represented by an attorney, unless either the attorney gives consent or the suspect “initiates” the discussion.
Accordingly, I come to the conclusion that Jordan’s statement to Detective Griggs on July 31 was inadmissible in a criminal trial — whether by court-martial or *192in a state court. This inadmissibility derives from the Fifth Amendment and its implementation by Miranda’s “prophylactic” rules. By the same token, Jordan’s statement to Detective Hazlette on August 3 was inadmissible because, after being assigned Lieutenant Stallings as his counsel, Jordan never “initiated” a discussion of the homicide with anybody. The erroneous reception of these statements in evidence requires reversing the decision of the Court of Military Review. Therefore, I need not discuss other aspects of the lead opinion.2
. On July 31 military authorities released Jordan to the custody of Detective Griggs; the important thing is that, thereafter, he was still in police custody while being interrogated.
. Of course, I am at odds with the gratuitous conclusion in footnote 5 of the lead opinion that Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), applies. See United States v. Ravenel, 26 M.J. 344, 349 (C.M.A.1988) (Everett, C.J.).