ALBANY – Judge Robert Smith of the Court of Appeals (See Profile) granted leave yesterday in a criminal case where a central issue is the potential for police to coerce an involuntary or false confession by deceiving the suspect, an issue that has resulted in conflicting opinions from two appellate panels.

Although the court never explains why it grants leave in a particular case, at oral argument in chambers last week on the leave application in the case of Adrian Thomas, Smith expressed concern with false or involuntary confessions, whether admissibility of testimony on the science or social science of psychological coercion is purely a matter of judicial discretion, and whether abuse of an infant constitutes depraved indifference murder under the court’s mystifying jurisprudence on depravity.

Smith on Friday spent more than one hour listening to, and sparring with, prosecution and defense attorneys in the Third Department case of People v. Thomas. This morning, he granted leave.

The case involves a defendant who was interrogated for more than nine hours, repeatedly lied to by police and eventually made an incriminating statement that led to his conviction for the murder of his baby. Thomas told police he threw the infant on a bed several times and inadvertently banged the baby’s head on a crib. He was convicted of depraved indifference murder and sentenced to 25 years to life in state prison.

On appeal, Thomas raises several issues, including an allegation that police induced him to make a false confession by telling him that his child was still alive and that doctors needed to know what had happened so they could save his life. The case is unusual in that police videotaped the entire interrogation, so the jurors and the panel that upheld the conviction were able to witness exactly what happened, a fact Smith seemed to find intriguing.

“It is not every day you get to review these sorts of things with a videotape,” Smith said.

The issue of police deception, and how far authorities can go in misleading a suspect before the ruse becomes coercive, is ripe in light of the Third Department’s decision in Thomas (NYLJ, March 23) and an apparently conflicting opinion last week from the Second Department (see People v. Aveni, 09-00978, NYLJ, Oct. 18).

In Aveni, and in apparent contrast to Thomas, the Second Department reversed a murder conviction because police had told the suspect that his girlfriend, who had been injected with heroin, was still alive and that he could save her life by revealing what had happened. Unlike the Third Department, which found that a similar ruse in Thomas was not coercive, the Second Department said in Aveni that the police had violated the defendant’s constitutional rights.

The two cases differ in that police implied to Paul Aveni that if he did not cooperate and the woman—whom they knew was dead—died, he would face homicide charges. Thomas, as Rensselaer County Assistant District Attorney Kelly Egan stressed during arguments on the leave applications, was not threatened with repercussions if he remained silent.

Smith, however, said he saw little difference in the two deceptive interrogations.

Thomas’ attorney, Jerome Frost of Troy, told Smith that during the lengthy interrogation, police made 67 misrepresentations, told him 21 times that his son was alive and threatened to arrest his wife.

“That threat has to do not only with what he said, but that he decided to say anything at all,” Frost said.

Much of the argument over the leave application centered on whether the trial judge, Rensselaer County Judge Andrew Ceresia, properly refused to admit the testimony of Richard Ofshe, a social psychologist and professor emeritus at the University of California at Berkeley. Ofshe, who has testified in hundreds of cases around the country and a handful in New York, was expected to testify how psychological coercion can lead someone to falsely confess to a crime.

Ceresia, after a Frye hearing (see Frye v. United States, 293 F. 1013 [1923]), held that Ofshe’s theories have not gained “general acceptance in the scientific community,” and refused to allow him to testify for the defense.

Egan told Smith that Ceresia’s decision was discretionary, prompting Smith to ask, “How can science be discretionary?” and said it seems “crazy that the highest court in the state” should be precluded from reviewing the determination.

“There are false confessions,” Smith said. “They are more frequent that you would think. But there is not much science in why they happen… Here, it does not seem ridiculous that maybe this guy was induced to produce a false confession.”

Egan said that Ofshe’s theories are not science and are not quantifiable. For instance, Egan said, there is no evidence that a certain interrogation tactic is likely to produce a certain number of false confessions, and no way to measure Ofshe’s conclusions.

Smith retorted: “You can’t study dinosaurs in a laboratory either.”

Also at issue is whether Thomas’ actions support a conviction for depraved indifference murder. The court has for years struggled to distinguish the mens rea of depraved indifference and distinguish it from reckless and intentional murder, with questionable success: Last month, the U.S. Court of Appeals for the Second Circuit said a series of opinions have left federal judges “in doubt as to what New York law really is” (NYLJ, Sept. 4).

At Friday’s in-chambers argument, after considerable discussion on the issue, Frost asked Smith: “Your honor, can you tell me what a depraved indifference murder is?”

Smith replied: “No, but I can cite some cases.”

Criminal leave applications are decided by a single judge, and almost always rejected.

According to the Court of Appeals’ 2011 annual report, of the 2,089 criminal leave applications last year, only 91, about 4 percent, were granted.

Of the criminal appeals decided last year, the court affirmed 59 percent and reversed 30 percent, with the remainder either dismissed or modified, according to the report.

The Thomas case inspired an award-winning documentary, “Scenes of a Crime,” which was honored by the American Bar Association last summer (NYLJ, July 23). An abridged version of the documentary by producers Grover Babcock and Blue Hadaegh of California will air on MSNBC on Dec. 9, according to Babcock.