dissenting.
Judge Cole’s opinion convinces me that once the accused has invoked his right to *438counsel, as here, the police may no longer interrogate him unless he either reinitiates interrogation himself directly or reinitiates interrogation through the counsel he has requested. After the accused has requested counsel, the police should not be able to importune him through relatives, friends, fellow inmates, prison guards or the press to subject himself to further interrogation. The Supreme Court has been strict in its enforcement of the Edwards rule.
Even if we permitted third party initiation, the State — at a minimum — would have to prove that (1) after invoking his right, the accused himself initiated contact on his own through a third person, (2) the third person contacted the police after the accused invoked his right, and (3) the waiver of the previously invoked right did not arise because the police encouraged the third person to convince the accused to break his silence and confess without counsel. The State has proved none of these elements in this case. There is no basis in the record before us for concluding (1) that Van Hook asked his mother to have the police contact him after he invoked his right, (2) that Van Hook’s mother told the police that Van Hook had changed his mind after invoking his right and now wanted to talk, or (3) that the claimed waiver did not involve police efforts to get Van Hook’s mother to convince him to talk to them.
Detective Davis himself testified that neither Van Hook himself nor any third person on behalf of Van Hook had asked for renewed police contact:
Q. And did you receive any information, either in your phone conversation with Detective Moody or upon your arrival in Ft. Lauderdale indicating that Mr. VanHook desired to talk to you?
A. No.
Q. So it’s fair to say that when you arrived in Ft. Lauderdale, all you knew at that point was that Mr. Vanhook was in custody, is that correct?
A. Correct.
Q. But you knew when you went into that interview room that he had in fact requested to speak to an attorney, or indicated he would like to have an attorney present before speaking with members of law enforcement, is that correct?
A. Yes, I was advised of that earlier by phone.
Q. When you left Cincinnati for Ft. Lauderdale, you knew that Mr. Van-Hook had indicated that he did not wish to speak with police officers until after he had consulted with an attorney, is that accurate?
A. I knew that he did not want to talk to police officers at that time. At the time of his arrest.
Q. And at 9:35 [P.M.] on that April 1 st then you advised him of his rights?
A. Correct.
Q. And this is after you advised him that you had a lot to talk about, he indicated he had talked with his mother, and that he wished to talk to you at that time?
A. Yes, sir.
Q. And it’s your testimony today that he didn’t call or he didn’t have anybody call you and say to come to the jail when you arrived in Ft. Lauderdale, that he wanted to talk with you?
A. That’s correct.
(Emphasis added, App. 370-81, 3784, 3785-86.)
Detective Davis had several telephone and in-person conversations with Van Hook’s mother while Van Hook was on the lam in Florida. It may be that Detective Davis told Van Hook’s mother before the police found and arrested Van Hook that *439she should get Van Hook to turn himself in and confess his crime. And it may be that when she talked to her son before and after he was arrested, that she told him that Davis wanted to talk to him and that he should “tell the truth.” But there is nothing in the record at all to suggest that after invoking his rights Van Hook reiniti-ated contact with police through his mother. Detective Davis’ testimony is to the contrary. There is no fact or reasonable inference from a fact that Van Hook’s mother even talked to the police after Van Hook invoked his right to counsel.
The majority opinion appears to claim that all of the Ohio Supreme Court conclusions are factual findings to which we are obligated to defer under § 2254(d)(8), title 28 (pre-AEDPA). This rendition of our standard of review does away with the normal rule that the application of a constitutional rule or standard to the facts is a mixed question of law and fact calling for de novo review. See, e.g., Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (“Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge”); Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (“For several reasons we think it would be inappropriate to abandon the court’s longstanding position that the ultimate question of admissibility of a confession merits treatment as a legal inquiry requiring plenary federal review”). This same standard of review is used in many other areas of constitutional review of state action. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 508 n. 27, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (“The simple fact is that First Amendment questions of ‘constitutional fact’ compel this Court’s de novo review”); Adams v. Tanner, 244 U.S. 590, 600, 37 S.Ct. 662, 61 L.Ed. 1336 (Brandéis, J., dissenting); (“Ex facto jus oritur [the law arises out of the fact]. That ancient rule must prevail in order that we may have a system of living law.”).
When we look at the record as a whole, including the police records showing contacts between Cincinnati police and Van Hook’s family, and apply the constitutional rule to the facts, it is clear that there was no contact between Cincinnati police and Van Hook’s mother or family on the day of Van Hook’s arrest, or any reinitiation by Van Hook through anyone else.
Counsel for Van Hook reports in his brief pages 10-11 an “exhaustive examination” of police records of all contacts with Van Hook’s family during their successful efforts to find him and have him arrested in Florida:
An exhaustive examination of the Cincinnati Police Department’s file on Robert Van Hook reveals no mention is made in 776 pages of police records, reports, and notes (contained in the joint appendix) to any conversation between Van Hook’s mother and police between the time Van Hook requested counsel and police reinitiated interrogation in violation of Edwards. (Police Records, Apx. Vol. 14-15, pp. 4780-5554).
The records of the Cincinnati Police Department detail conversations with Van Hook’s mother on seven separate occasions: (1) Officer Davis has Detective Weber call Van Hook’s mother on 2/26/85 (Id. at Vol. 14, pp. 4897, 5171); (2) Officer Davis has Detective Weber call Van Hook’s mother on 3/5/85 (Id. at 4914); (3) Officer Davis has Michael Ramsey call Van Hook’s mother on 3/5/85 (Id.)\ (4) Van Hook’s mother calls Detective Weber on 3/11/85 (Id. at 4919, 5174); (5) Officers Hennekes, Davis, and Rowland speak with Van Hook’s mother at her house on 3/13/85 (Id. at 4922-24); (6) Officers Hennekes and Davis return *440to Van Hook’s mother’s house and put tracer on her phone on 3/14/85 (Id. at 4928); and (7) Officer Hennekes receives a call from Van Hook’s mother on 3/21/85 (Id. at 4935).
The Cincinnati police file indicates a subpoena was issued for Van Hook’s mother’s phone records 3/7/85 (Id. at 4917). And Van Hook’s mother’s phone records are included in the police file as well. (Id. at Vol. 15, pp. 5348-55). The file also includes references to phone calls with Van Hook’s step-mother 3/6/85 (Id. at Vol. 14, pp. 4930-31). Van Hook’s father 3/7/85 (Id. at 4931), and van Hook’s uncles 3/7/85 (Id. at 4916). Yet, conspicuously absent from the 776 page file of the Cincinnati Police Department is any mention of a conversation with Van Hook’s mother on the day of his arrest.
The majority does not even mention these records, Detective Davis’ testimony or their effect on the State’s claim that Van Hook reinitiated contact with the police through his mother. The majority’s treatment of the case does not fall within any bright line rule based on Edwards, nor the more general Edwards standard that we “should indulge every reasonable presumption against waiver of fundamental constitutional rights” and that “doubts must be resolved in favor of protecting the constitutional claim,” and that “it is the State that has the burden of establishing a valid waiver.” Michigan v. Jackson, supra, 475 U.S. 625, 633, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), a case applying the reasoning of Edwards. The majority refuses to apply this standard or observe the admonition of the Supreme Court in Michigan v. Mosley, 423 U.S. 96,110 fn. 2, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975):
[T]he reason to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism. BOYCE F. MARTIN, JR., Circuit
Judge, dissenting.
I join the well-reasoned dissents of Judges Merritt and Cole. Both properly highlight the fundamental tenet of Edwards v. Arizona: that once a suspect asserts his right to counsel, he cannot be subject to further interrogation “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added).
I fully agree with the majority that when faced with an issue or set of circumstances that the Supreme Court did not address in its original decision, we may modify, extend, or restrict its ruling. I disagree with the majority, however, in its position that we may modify a ruling where the Supreme Court has already provided explicit language to guide us. And Edwards clearly explains that any re-initiation must be communicated by “the accused” to “the police.”
To the extent that the majority’s holding could be a defensible interpretation of Edwards, any arguments in its favor are completely undermined by the fact that its ruling is utterly impractical. The majority fails to provide a workable rule of uniform application. The test set forth by Judge Merritt in his dissent provides much more *441practical guidance for future panels of this Court and district courts faced with the issue of third party initiation. There is no reason why this test cannot at least inform future adjudication of cases involving this issue. Judge Cole’s concern for the distinct probability of a suspect’s communications to third parties becoming “lost in translation” further underscores the impracticality of today’s decision. The Court’s ruling does not merely amount to further erosion of Miranda, but the creation of a legal framework that is doomed to breed uncertainty and confusion.
For these reasons, I respectfully dissent.