By Audrey Sawyer and Andrea Bernal
VALLEJO, CA – The Vanguard has been covering the case of Tre’ Kenneth Clay, who has been behind bars since 2021 after allegations of murdering his two-month-old son, Elijah Clay.
Wednesday, in Solano County Superior Court, it was agreed there would be another continuance for Deputy Public Defender Jeannette Garcia to obtain critical testing to determine if Elijah Clay died of brittle bone disease (having been misdiagnosed) instead of alleged repetitive abuse, as suggested by Deputy District Attorney Barry Taira.
While the prosecution objected, Judge Dan Healy granted the continuance.
Another point previously mentioned by the parties involved prior “incompetence” or lack of preparation from a different defense attorney (Gurjit Pandher).
When Officer Clinton Morgan arrived at Oakland Hospital in January 2021 to respond to the death of Elijah Clay, the officer said Elijah had bruises on his legs and face (according to the preliminary transcript).
Elijah’s mother had stated that she left their son with his father (Tre’ Kenneth) to go run some errands. After noticing Elijah lying face up and “pale and cold” to her touch, she called Kaiser and was told to take her son to the hospital.
The second argument from defense referred to one main witness for the prosecution, a forensic pathologist Dr. Raven, who claimed the cause of death was “likely from repeated abuse, stating Elijah’s X-rays showed various fractures shown by skull lesions and fibrous tissue. It noted a contradiction by Dr. Raven, who had texted a Solano County morgue technician admitting the nature of this case “makes it almost impossible for me to commit to alleging abuse/homicide.”
In addition, molecular expert geneticist Dr. Gerard Pals testified these fractures were actually skull sutures (where part of an infant’s skull develops together), calling the testimony of the forensic pathologist into question.
On Wednesday, during a trial setting for the case’s continued hearing, Judge Healy noted he had not received any filings.
To this, DPD Garcia said, “I did file something on Monday, in case the court lost patience.” She clarified that she is still waiting for testing and testing results, so if the court would be willing to wait, for them to return in about seven weeks.
DPD Garcia added she did not have a firm date on when she would receive the test results—and since she would be back in Yolo County on Aug. 12, requested about seven to eight weeks for the trial setting.
DDA Taira objected to the multi-week wait.
Judge Healy expressed frustration that he said he has had for the past six months regarding the case’s duration, stating, “It seems to me that you all could agree if we performed tests A, B, and C, we can either establish or rule out this condition that might be a huge basis.” This is in reference to tests that could conclude the possible presence of brittle bone disease in Elijah Clay.
DPD Garcia argued testing should have been done prior to prelim to really understand the case. She added that to have gone forward with the case (with the previous defense attorney) was exceptionally premature.
DPD Garcia referenced Pandher and how ultimately “unqualified he was to do the hearing if he didn’t even recognize all the things that needed to be done.”
Garcia thanked the court for its patience but added the samples for the testing had not been received by the lab until May 12. However, she expressed that she is hopeful that she will get the information from the lab soon.
DDA Taira responded “the irony of this entire matter is that Mr. Pandher, who had the case, only received the case in March of 2022.” He explained that Mr. Pandher ultimately only had the case for six months to prepare prior to the preliminary hearing which occurred in June 2022.
Taira argued the public defender has now had the case for much longer than Pandher had, agreeing that they are saying the prior attorney was ineffective when he had only six months, but this would be contradictory since the current defense counsel has had it for a longer time in order to prepare.
DDA Taira asked the court again to “rule on the motion now.” He said this is because Elijah Clay’s family has “a right to have this case move forward” and cited the timing of the case.
Judge Healy agreed it has been a long time, but added, “I’m not a geneticist or a scientist.”
Judge Healy explained that if there is a possibility that an expert could say “there was something here that is incredibly obvious that could have been straightforward…to which another truth would have been revealed” then the defense is “entitled to play that out.”
The defense was granted a continuance of six weeks until Aug. 21, instead of the originally requested seven to eight weeks.
