(Editor’s note: The Clay case, and The Vanguard’s coverage of it, is part of an ongoing investigation.)
FAIRFIELD, CA – In a case extensively covered by The Vanguard, Tre’ Kenneth Clay, a father who has been incarcerated since 2021 for possible wrongful accusations of the murder of his two-month-old son, Elijah Clay, appeared Tuesday in Solano County Superior Court for a bail hearing.
Judge Dan Healy discussed newly received scientific testing, which diagnoses Elijah Clay with Osteogenesis Imperfecta (OI), according to the genetic testing report, and indicates the child’s death was caused by this condition instead of alleged repetitive abuse, as suggested by Deputy District Attorney Barry Taira.
In Tuesday’s hearing, Deputy Public Defender Jeannette Garcia discussed the critical testing which she alleges confirms the presence of OI, otherwise known as brittle bone condition, stating, “I have a factually innocent client whose been in custody for three and a half plus years, and we have given them as much as we can right now.”
Garcia added, “It’s just a travesty for him to be incarcerated a single day, besides the fact that I fully believe after this there will be some civil consequences for the state and the county in having incarcerated him for all this time.”
DPD Garcia explained the District Attorney received a report from Dr. Gerard Pals, an expert geneticist, in 2023 confirming the victim’s diagnosis of OI, and noted, “it’s been well over a year that they (the DA’s office) know our position.”
Conceding that the defense’s position was “weak” at one point because it lacked concrete evidence from the genetic testing that recently confirmed the presence of OI, DPD Garcia explained now the defense has the “scientific testing to confirm the diagnosis.”
The public defender also informed the court genetic testing revealed another genetic condition known as Leigh’s Syndrome that Elijah Clay suffered, noting, Leigh’s Syndrome is a “very tragic diagnosis for any child because children do not survive into their teens with that condition.”
Michelle Lopez, Clay’s mother, who has been motivated by the claimed wrongful accusations of her son, characterizes Clay’s story as one of medical misdiagnosis, or “medical kidnapping,” according to Elijah’s Truth Journey press release.
Lopez describes the “medical kidnapping” as “when medical professionals assume parents have abused a child instead of correctly diagnosing a major illness,” asserting Elijah needed critical medical intervention for a major respiratory disease, yet instead, her son, Clay is facing felony charges for child abuse resulting in death of an infant.
Despite acknowledging that the genetic testing had been completed and conclusive in the diagnosis of Elijah Clay, DDA Taira continued to push back against the diagnosis of OI from the genetic testing.
“Even if we assume for one second that this diagnosis is correct. Dr. Pals himself indicated it that he had a case where someone suffered from OI, but was in fact victim of child abuse. It doesn’t mean that you cannot be a victim of child abuse if you suffer from OI,” said DDA Taira.
The prosecutor argued against DPD Garcia’s request for a bail motion for Clay and requested that the court rule on the 995 Motion to Dismiss the case, which DPD Garcia introduced to the court because of alleged inadequate counsel from Clay’s prior defense attorney.
In response to DDA Taira’s request to rule on the 995 Motion, Judge Healy expressed his own concerns regarding ruling on the Motion to Dismiss, stating, “The thing I was struggling with was how easy or difficult would this be to ascertain in order to assess whether or not an attorney should have discovered this (OI)…I’m a little hard pressed to find that counsel was inadequate.”
Judge Healy continued addressing his concerns, citing how long it has taken DPD Garcia to complete genetic testing and why it has taken this much time – essentially questioning if prior defense counsel’s inability to find evidence of Elijah’s brittle bone diagnosis is an example of inadequate counsel.
Concluding the hearing, Judge Healy directed his final comments and a warning to DDA Taira, stating, “As your argument that even with the presence of a really rare genetic disorder that leads to brittle bone disorder notwithstanding the fact that Mr. Clay said something about shaking a child that therefore there’s plenty of evidence.
“I would argue to reconsider that position. You’re just going to end up on the wrong side of a Netflix series if you keep saying things like that.”
Clay will remain in custody and the case will resume Aug. 21.
