(concurring in part and dissenting in part). I agree with the majority that the Supreme Court’s recent decision in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), would require suppression of the present defendant’s inculpatory statements were Bender to be applied retrospectively. However, *505pursuant to Johnson v New Jersey, 384 US 719, 729-734; 86 S Ct 1772; 16 L Ed 2d 882 (1966), I do not believe that Bender should be afforded retrospective application. Accordingly, I would affirm.
Initially, I would note that Bender is a very unusual decision. The issues in Bender were framed in terms of a defendant’s constitutional right to counsel (Const 1963, art 1, § 20) and right against compelled self-inciimination (Const 1963, art 1, § 17). However, the issues were resolved on a strictly extraconstitutional basis. The majority opinion in Bender1 concedes as much, stating:
This case rather clearly implicates both the right to counsel (Const 1963, art 1, § 20) and the right against self-incrimination (Const 1963, art 1, § 17). I conclude that rather than interpreting these provisions, it would be more appropriate to approach the law enforcement practices that are at the core of this case .... [Bender, supra p 620 (emphasis added).]
The opinion then proceeds to speak without great specificity of “constitutional civil liberties,” id., p 621, “closely guarded legal traditions,” id., p 623, and our “accusatorial” as opposed to “inquisitional” system of criminal justice. Id. The dissent characterized this approach as being “grounded solely on policy concerns, not constitutional mandates.” Id., p 644.
The “policy concern” lying at the heart of the Bender decision may be found in the following sentence of the majority opinion: “[W]e invite much mischief if we afford police officers ‘engaged in the often competitive enterprise of ferreting out crime’ the dis*506cretion to decide when a suspect can and cannot see an attorney who has been retained for a suspect’s benefit.” Id., p 622 (citation omitted). This may be true, but, to paraphrase the dissent in Bender, one’s personal desire to avoid “much mischief,” no matter how sincere and heartfelt, does not translate that belief into a constitutional right. However, regardless of any shortcomings in the Bender decision, it is now the law in Michigan. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993).
However, it is only now the law in Michigan. As discussed by the majority in the present case, our Supreme Court, in Bender, adopted a new prophylactic rule of law arguably foreshadowed by the Court’s previous, fractured decision in People v Wright, 441 Mich 140; 490 NW2d 351 (1992). This histoiy is remarkably similar to that of the United States Supreme Court’s decision in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966),2 a decision that reified a new principle of law first adumbrated several years before Miranda in Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964).
The United States Supreme Court declined to afford Miranda retrospective application despite its prior decision in Escobedo. Johnson, supra, pp 729-734. The Court limited its application of the Miranda decision, though a clear majority of the Court previously had embraced the reasoning of Escobedo. In contrast, there was no majority decision in Wright. Thus, where the United States Supreme Court refused *507to enforce Miranda retrospectively even where that decision had been foreshadowed by a clear majority of the Court in Escobedo, surely retrospective application of Bender is unwarranted where our Supreme Court could not muster a majority decision in Wright, the decision alleged by the majority in the present case to mandate retrospective application of Bender.
Therefore, I would decline to enforce Bender retrospectively and would affirm.
The majority opinion in Bender is the concurring opinion written by Chief Justice Brickley, not the lead opinion written by Justice Cavanagh.
In fact, the Bender decision itself calls attention to its parallels with Miranda. Bender, supra, p 621.