VANGUARD COURT WATCH INVESTIGATION: Judge Denies Motion to Dismiss Murder Case, Despite Acknowledging Prosecution May Not be Able to Get Conviction

(Editor’s note: The Clay case, and The Vanguard’s coverage of it, is part of an ongoing investigation.)

FAIRFIELD, CA – Tre’ Kenneth Clay, a father facing apparently wrongful accusations of the murder of his two-month-old son, Elijah Clay, as reported by the Vanguard, appeared Wednesday in Solano County Superior Court for the final day of the motion to dismiss assault on a child causing death charge.

Judge Dan Healy ultimately denied the motion to dismiss, despite newly received scientific testing, which diagnoses Elijah Clay with Osteogenesis Imperfecta (OI), and indicates the child’s death was caused by this condition not the alleged repetitive abuse, as charged by Deputy District Attorney Barry Taira.

On Feb. 2, Deputy Public Defender Jeannette Garcia filed a motion to dismiss the count of assault on a child causing death against Clay, charging the prior defense attorney’s alleged incompetence, and alleged perjury by forensic pathologist Dr. Katherine Raven, according to the court’s official motion to dismiss.

As previously reported by the Vanguard, the primary forensic pathologist in this case, Dr. Raven, told the court during Clay’s preliminary hearing that Elijah’s cause of death was likely abuse, according to the hearing transcript.

However, just a day before the hearing Dr. Raven sent a text message, “This is an incredibly complicated case and that report makes it almost impossible for me to commit to abuse/homicide,” according to court documents reviewed by The Vanguard.

In Wednesday’s proceedings, Judge Healy told the court that there were two ultimate questions for this hearing.

The first question, said the judge, is to address if previous Defense Attorney Gurjit Pandher fell below the adequate constitutional standards, and the second question is if the Clay case shows a colossal injustice regarding a certain individual’s “unwillingness” to have enough integrity to explore the case’s issues.

DDA Taira then inquired if Judge Healy meant he was lacking in integrity. In response, Judge Healy explained he wanted both parties to have agreed on a lab for the testing eight months ago, noting, “I think it is absolutely clear to me that your disinterest in science, and disinterest for the truth in this case is incredibly palpable and depressing. Having said that, your position is incredibly depressing and I at least want to believe that your office seeks the truth.”

Judge Healy then addressed the court regarding the constitutionality of how Pandher had previously handled the case.

DPD Garcia said, while referring to the defense’s expert witness Professor Keith Findley, that a lot of the information available on neuropathology to question the coroner was in the reports initially. But she added that Pandher did not have that information from the reports, and that Pandher did not consult any doctors or other consultations.

“He acknowledged that he spoke with a doctor who had not finalized their report, and he did a preliminary hearing without having all of the medical information. If we only review the reports, a lot of that did not make sense. The child was born prematurely and had a growth restriction. The child was in the NICU for the first 10 days, this was not addressed in the preliminary hearing, argued DPD Garcia.

Garcia added that the day Elijah died, the absence of two hours would not explain all of the medical injuries, charging Pandher not only did not use all of the information readily available to him.

But he did not explain the prior text message between the coroner and the coroner’s assistant, where doubt was expressed if there could be a homicide claim.

“Pandher did not look at the medical information, he did not have discovery, and he did not challenge any statements. This all indicates that there was inadequate counsel,” said Garcia.

Garcia continued to reference that now, they have medical information that shows the connection to osteogenesis, explaining, “The sheriff’s had interviewed Tre’Kenneth Clay for multiple hours previously, and there was no evidence that he had been abusive to his son Elijah established in the preliminary hearing.”

Garcia, adding, “If this is an inadequate representation of counsel, we want a new preliminary hearing,” said the case currently was not post trial, but that she believed there has been proven prejudice in the case.

DPD Garcia stated that even a normal handling of a child with OI, such as Elijah, can cause fractures, and emphasized that as the case is in the pretrial stage, only inadequate assistance of counsel is necessary as a component to grant the 955 motion to dismiss.

Judge Healy, turning to DDA Taira, asked what efforts were taken to get scientific testing completed, adding he believed it to be “none.”

DDA Taira responded by saying the basis of the 995 motion in front of them is that Pandher was ineffective, pointing out that Pandher had been on the case for six months.

Taira maintained, “It has been almost two years. In 2021, they also had the case, they had it for five months. For counsel to say that Pandher is ineffective to find the one and only doctor who can testify to this is a stretch to call Pandher ineffective. Counsel has had 2.5 years to do this. They’ve had much more time.”

Judge Healy said to the prosecutor, “If a jury sees what I’ve seen, on what basis could you get a conviction?”

But, the judge then sided with the prosecution’s claims that there was not a constitutional violation in representation of prior counsel, and ruled the case “needs to go to trial,” denying the motion to dismiss before sending the case to another judge to decide bail.

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