dissenting.
I respectfully dissent. The principal opinion proceeds on the premise that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), applies to this case. If it does, I believe Boggs’ confessions were obtained by the police in violation of his fifth amendment right to counsel and should have been suppressed under Edwards, and even if Edwards does not apply the defendant’s sixth amendment right to counsel was violated.
All events surrounding Boggs’s confessions occurred in July 1979 and the trial was completed in April/May 1980. The Edwards decision, however, was not handed down until May 18, 1981. It is at least questionable whether Boggs’ waiver of his rights and confessions are required to be evaluated in light of Edwards. I am not satisfied that Edwards must be given retroactive effect. See, e.g., Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Martin v. Wyrick, 568 F.2d 583 (8th Cir.), cert. denied, 435 U.S. 975, 98 S.Ct. 1623, 56 L.Ed.2d 69 (1978). Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (criteria to determine if decision should be applied retroactively). Nevertheless, the principal opinion applies Edwards to this case and then finds no violation of its principles.1 If Edwards applies, I be*458lieve its requirements were ignored and violated by the state.
A brief summary of the facts is necessary. On July 8, 1979, a felony complaint charging capital murder, burglary, and armed criminal action was filed against Boggs by a Greene County assistant prosecuting attorney. A warrant for his arrest issued. Captain Whitlow then flew to Fort Worth, Texas, and returned Boggs to Missouri after he had waived extradition. Boggs spent that night in the Greene County jail.
On July 9, 1979, the sequence of events becomes muddled. But, accepting the principal opinion’s use of the officer’s testimony as accurate, several things are clear. On the morning of the 9th, Boggs was taken from the jail to the sheriff’s office. There, he was read his Miranda rights and the waiver form. Prior to the time the rights waiver was filled out and before any questioning began, “[Boggs] stated he would like to talk to his attorney before he gave a deposition.” Testimony of Captain Whit-low.2 He was given that opportunity. After he spoke with the attorney the police returned to the room. When Captain Whit-low asked Boggs “what he had been advised”, Boggs either stated “that Mr. Twi-bell had told him that if that’s what he wanted to do [give a deposition] that as far as he [Twibell] was concerned it was okay to go ahead” 3 or “if he was going to give a statement or deposition to make sure he gave it correctly and tell the truth.” 4
Prior to questioning, Boggs was again advised of his rights and read the waiver form. At some point, either before the signing of the waiver form and questioning or after the signing of the waiver form and during the questioning, Boggs was taken to the courthouse for his initial hearing.5 At that hearing the charges were read. The judge testified that he did not advise Boggs of his right to have counsel appointed.6 Nonetheless he asked Boggs what he had done about an attorney. Boggs, by some means, expressed his desire to hire an attorney. The judge remembered the event as follows:
A. Well, as I recall I set the bond and the date for the preliminary examination and then asked him what he was going to do with respect to an attorney.
*459Q. Could you tell us, sir, what occurred at that time?
A. Well, Charles Whitlow turned to him and whispered something to him and then turned back and my best recollection is that Mr. Whitlow said he was going to employ his own attorney and as I recall Mr. Boggs in some way indicated that that was correct by nodding or otherwise, some expression. I don’t recall Mr. Boggs saying anything at that point.
Captain Whitlow believed that “Mr. Boggs stated that he wished to look into hiring his own attorney first.” Detective Lowe, although not remembering the exact words, did recollect Boggs “saying something about he was going to try to get Bert Twibell to represent him.” On completion of the hearing “Mr. Whitlow said at that point that he [Boggs] was to go back to the Sheriff’s Department for further questioning,” and Boggs then gave or completed his confession. Testimony of Judge Davidson.
The fifth amendment right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), protects a suspect’s privilege against compulsory self-incrimination during custodial interrogation. The United States Supreme Court recently recognized that “additional safeguards are necessary when the accused asks for counsel.” Edwards v. Arizona, supra, 451 U.S. at 484, 101 S.Ct. at 1884. To that end, the Court adopted a prophylactic rule setting forth objective criteria by which to evaluate the waiver of counsel. Once a suspect invokes his right to counsel, he is not subject to “further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85,101 S.Ct. at 1884-85. And any subsequent finding of a valid waiver must include “the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Id. at 486 n.9,101 S.Ct. at 1885-86 n.9. Therefore, after a suspect has invoked his fifth amendment right to counsel, the waiver of that right during custodial interrogation must be judged by objective criteria. Without counsel present, the suspect must have initiated the conversation.7 If he did initiate the dialogue, then the purported waiver must be shown to be knowing and intelligent (intentional relinquishment or abandonment of a known right or privilege) under the totality of the circumstances. Id.
The facts of the instant case fail that test. Here, the record is bereft of any evidence that Boggs, after asserting his right to counsel twice, initiated “further communication, exchanges, or conversations with the police.” In fact, the evidence affirmatively shows that the police initiated all contacts and communications.
After requesting that he wanted counsel before any interrogation and after speaking with an attorney, Captain Whitlow asked Boggs what his attorney said. Boggs replied by saying, in essence, that his attorney told him if he wanted to give a statement to tell the truth. By any account, Boggs never said that he wanted to give a statement nor could his reply to Captain Whit-low constitute an initiation of conversation with the police. First, he only responded to the questioning of the police. Second, his reply could not be termed an initiation of communication because there is no indication that Boggs changed his mind about seeing an attorney before speaking with the *460police.8 Thereafter, Boggs was either questioned or taken to court for his initial hearing.
In court Boggs, by whatever means, again asserted his right to counsel. The police, present in court and aware of Boggs’ assertion of his right to counsel, immediately left the court after the hearing and returned to Captain Whitlow’s office because Boggs “was to go back to the Sheriff’s Department for further questioning.” There, the questioning either began or continued 9 at the insistence and instigation of the police.
The principal opinion finds that some evidence
showing ... [a] valid waiver ... [were] defendant’s repeated expressions of willingness to make statements in the absence of counsel, manifested by the fact defendant signed several waiver forms after being advised of his rights, his repeated oral and written waivers following the repeated Miranda warnings, and the fact he gave two detailed consistent confessions.
At 452-453. The Supreme Court held, however, that “a valid waiver of that right [to counsel] cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights,” 451 U.S. at 484,101 S.Ct. at 1884 (footnote omitted), especially without “the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Id. at 486 n.9, 101 S.Ct. at 1885-86 n.9. Simply, each time after Boggs asserted his right to counsel the evidence of who initiated further contact or communication demonstrates that it was the state, not the appellant, who did so.
As stated at the outset, I doubt that Edwards should be given retroactive effect. Its principles probably should not apply to statements or confessions taken prior to Edwards even though they are offered in evidence at a trial after Edwards. Johnson v. New Jersey, supra. The reason the foregoing portions of this dissent were written is because the principal opinion applies Edwards to this case and states that the criteria of Edwards were satisfied. In my opinion, the criteria of Edwards were violated and, therefore, if Edwards applies, there was no valid waiver of Boggs’ fifth amendment right to counsel.
Additionally, it is my opinion that appellant’s sixth amendment right to counsel was violated. Adversary criminal proceedings had begun, at the latest, when Boggs was brought before the court for his initial appearance, after his arrest by warrant and the filing of a criminal complaint, and the sixth amendment right to counsel would have attached at that time. The state agrees, stating in its brief, “[A]t the time in question appellant was entitled to the help of an attorney.” See Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). And the sixth amendment right to counsel is a broad guarantee that the accused “need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967). Yet, without the presence of an attorney, the police chartered a course by which to obtain a confession from Boggs at a critical stage of the proceedings.
Where the state deliberately elicits incriminating statements from an accused when counsel is not present, it has inter*461fered with his right to counsel and violated his sixth amendment right, absent waiver. No doubt the police deliberately elicited the confessions. The court reporter who recorded the confession on July 9th had been contacted the day before (prior to the time Boggs had even been returned to Missouri) to be at the sheriff’s office that morning. And after his initial court appearance, Boggs was taken to the sheriff’s office for the express purpose of “further questioning”. The officers intentionally created a situation that was likely to induce incriminating statements by Boggs. See United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980). Without waiver, Boggs’ sixth amendment right to counsel was violated. The principal opinion, however, finds that Boggs validly waived his right to counsel. Although the principal opinion fails to make clear whether it is evaluating that waiver in terms of the fifth or sixth amendment,10 reliance on Edwards suggests that it proceeded under the fifth amendment because Edwards was a fifth amendment case. Nevertheless, even if there was a showing that the state did not violate Boggs’s fifth amendment right to counsel, it is insufficient to prove the lack of a sixth amendment violation.
Once adversary proceedings begin against an individual, he has the right to an attorney whenever the state conducts an interrogation. Brewer, supra, 430 U.S. at 401, 97 S.Ct. at 1240. And as the state admits in its brief, “In determining whether or not there has been a waiver, the court is to indulge every reasonable presumption against waiver.” See id. at 404, 97 S.Ct. at 1242. The burden is on the state to prove “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Consequently, the waiver of the right to counsel under the sixth amendment requires the state to prove not only comprehension and understanding of this right by the accused, but an intentional relinquishment of the right as well. Brewer, supra, 430 U.S. at 404, 97 S.Ct. at 1242. It seems clear that with the heavy burden on the state to overcome every reasonable presumption against waiver by clearly showing the accused understood his right to counsel and then intentionally abandoned that right, any requirements for a sixth amendment waiver of the right to counsel must be stringent. I do not believe that perfunctory Miranda waivers are sufficient to overcome a presumption against waiver and show a sixth amendment waiver. See United States v. Mohabir, 624 F.2d 1140, 1146-48 (2d Cir. 1980).
Instead, I agree with the standard for a sixth amendment waiver of the right to counsel set forth by Judge Simpson when he said:
[T]he responsibility of a trial judge in determining whether a defendant has effectively waived his right to counsel at trial is distinguishable from that of government agents wishing to interrogate a suspect represented by an attorney. But while the specific inquiry to be made in each case varies, the underlying purpose remains the same: Johnson v. Zerbst [which involved a waiver of counsel at trial] “applies equally” to both situations. Brewer v. Williams, supra, 430 U.S. at 404, 97 S.Ct. at 1242. Quite simply, a person cannot “knowingly and intelligently” waive a right if he lacks some rudimentary understanding of how he might be affected by relinquishing that right. At a trial, with all its procedural complexities, detailed explanation by the judge may be necessary to assure that the defendant has this rudimentary understanding. Less explaining may be required in the interrogation context, but surely more is necessary than the bare statement that “you have the right to an attorney”. A layman, however intelligent or well educated, should not be expected to understand how a lawyer can assist him in the face of criminal charges. *462This basic principle lies at the heart of the cases construing the right to counsel.
The Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel”. Johnson v. Zerbst, supra, 304 U.S. at 462-63, 58 S.Ct. at 1022.
United States v. Brown, 569 F.2d 236, 243 (5th Cir. 1978) (Simpson, J., dissenting) (footnotes omitted). See also United States v. Mohabir, supra.
I do not believe an accused can understand his right to counsel and then intentionally relinquish it without knowing how counsel can be of benefit to him at that point and the consequences of waiving his right to counsel.11 For that understanding, some explanation by the authorities is required because a layman does not possess the necessary legal acumen—that is the purpose for the constitutional guarantee of assistance of counsel.
In the instant case, it is not claimed that Boggs was made aware of and understood the benefit of counsel and the consequences of waiving that right. No evidence of that fact exists. Rather, the record discloses a systematic course of action by the police to deliberately elicit incriminating statements from Boggs, absent a valid waiver. Under these circumstances, I believe Boggs’ sixth amendment right to counsel was violated and his confessions should have been suppressed. Additionally, if Edwards v. Arizona, supra, applies to this case, there was no valid waiver of the fifth amendment right to counsel. Therefore, I dissent.
. The principal opinion states that “the trial court could have found that not only was counsel made available and defendant’s request [for counsel] honored, but defendant voluntarily initiated further discussions, then knowingly and intelligently relinquished his rights and voluntarily gave a statement.” At 453 (emphasis *458added). While the trial court could have made all these findings, it seems unlikely. When the suppression hearing was held in February 1980, Edwards had not yet been decided.
. Detective Lowe also related that prior to the time any questions were asked, Boggs requested to speak with an attorney. In fact, Detective Lowe stated that after the Miranda rights and waiver form were read and explained to Boggs, “he said he would like to call an attorney and talk to him before he went any further.”
. Testimony of Captain Whitlow.
. Testimony of Detective Lowe.
. Captain Whitlow testified that “either while we were taking the statement or deposition or just prior to starting it the Court called for him to be brought over and arraigned. We did bring him over and arraign him.” Later Captain Whitlow apparently was certain that “[w]e had started the deposition at the time they called for him to be arraigned, so we stopped, and broke until he was brought in and arraigned, and then we went back and completed it.”
Detective Lowe testified that Boggs was taken to the court “from the Sheriffs office.” When he was later pressed for an exact sequence of events, the following transpired:
Q Okay. You accompanied John from the Greene County Jail up to the Court, and then he was taken to the—to Captain Whit-low’s office. Isn’t that a correct statement, sir?
A I don’t know if that’s correct, or not, sir.
Q And do you recall the sequence of events that day?
A Outside of the statement, no sir.
Q Do you know—
A —I don’t know, exactly, what sequence they fell into. I don’t know if he was taken to Captain Whitlow’s office first, or to the Court first.
.On cross-examination by the state the judge stated:
Well, I just asked him what he was goipg to do about an attorney and then at that point, as I’ve testified, it was said that he was going to employ his own attorney, but I did not advise him then that if he couldn’t afford an attorney I would appoint one for him.
. The United States Supreme Court recognized that “[t]he Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.” Edwards, 451 U.S. at 485-86, 101 S.Ct. at 1885. In fact, "Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused ‘the interrogation must cease until an attorney is present.’ 384 U.S., at 474 [86 S.Ct., at 1628], Our later cases have not abandoned that view.” 451 U.S. at 485, 101 S.Ct. at 1885. See also id. at 482, 101 S.Ct. at 1883. The Edwards Court, however, did not prevent a suspect from confessing without counsel present once he asserts *460that right, if he decides to relinquish his right and initiate the dialogue with the authorities.
. Although the Supreme Court in Edwards never explained what would constitute suspect-initiated dialogue, it seems clear that the suspect must speak first to the authorities with the purpose of not dealing with them through an attorney. To allow any conversation or contact, no matter what the content, to constitute suspect-initiated dialogue would emasculate the “additional safeguards ... necessary when the accused asks for counsel.” Not even the fifth amendment right to silence is so strictly construed.
. See n.5 supra.
. The parties only briefed whether the confessions had been obtained in violation of Boggs’s sixth amendment right to counsel.
. “The Court’s sixth amendment decisions are premised on the assumption that, at least with respect to government efforts to elicit incriminating statements, the defendant is entitled to substantially the same type of protection he would have at trial.” White, Book Review, 129 U.PaX.Rev. 994, 1003 (1981) (footnote omitted).