FAIRFIELD, Calif. — A Solano County Superior Court judge declined Friday to hold Tre Clay to answer on felony charges stemming from the 2021 death of his infant son, finding insufficient evidence to advance the case after an extended preliminary hearing involving conflicting medical testimony about the cause of the child’s injuries and death.
Judge John B. Ellis issued the ruling Nov. 6 in Department 23, concluding that the evidence did not establish sufficient cause to believe Clay had committed the alleged offenses.
Clay faced charges of assault on a child under eight causing death under Penal Code Section 273ab(a) and felony child abuse or endangerment under Section 273a(a), along with an allegation of inflicting great bodily injury on a child under five under Section 12022.7(d).
The charges arose from the January 2021 death of his 11-week-old son, Elijah Clay, whose injuries prompted allegations of abusive head trauma.
The preliminary hearing extended over more than a year and included testimony from numerous medical experts. Deputy District Attorney Elaine Kuo represented the prosecution, while Deputy Public Defender Jeannette Garcia represented the defense.
In a seven-page legal memorandum filed Nov. 4, Kuo identified two central questions for the court: whether Clay acted with the mental state required for the charged offenses and whether his alleged conduct caused Elijah’s death.
The prosecution argued that it did not have to establish that Clay intended to kill his son. Citing the California Supreme Court’s decision in People v. Wyatt, Kuo maintained that the applicable standard concerned whether a reasonable person, knowing the circumstances, would recognize that the alleged conduct was likely to cause great bodily injury.
During closing arguments, Kuo maintained that Clay’s statements to investigators and Elijah’s medical findings established sufficient cause to proceed.
She alleged that Clay “shook, slammed and squeezed” Elijah on Jan. 18, 2021, causing abusive head trauma that ultimately resulted in his death.
Kuo acknowledged disagreements among medical experts concerning the child’s acute-on-chronic subdural hematomas, or bleeding around the brain, but argued that those disagreements should be resolved at trial.
Citing testimony from prosecution expert Dr. Julia Magaña, a pediatric emergency medicine and child abuse specialist, Kuo argued that intracranial bleeding, fractures and other findings supported an abusive head trauma diagnosis.
The prosecution’s written submission also cited testimony from forensic pathologist Dr. Katherine Raven, who performed Elijah’s autopsy and attributed his death to a brain bleed resulting from a sustained head injury.
Kuo pointed to testimony concerning posterior rib fractures, intracranial bleeding and a subgaleal hematoma, arguing that the combination supported a diagnosis of inflicted trauma. The filing also cited testimony from Dr. Evan Matshes that posterior rib fractures were concerning for a possible squeezing mechanism.
“Sure, ultimately this is a battle of the experts,” Kuo said, arguing that “the proper field for that battle is jury trial.”
Before Garcia delivered her closing argument, Ellis denied a defense motion challenging Clay’s statements on Miranda grounds and rejected requests to exclude or limit portions of the expert testimony.
“I’m allowing all the experts’ testimony,” Ellis said.
Garcia argued that prosecutors had failed to establish that Clay caused the injuries responsible for his son’s death.
She disputed the prosecution’s interpretation of his statements to investigators, maintaining that descriptions of shaking or bouncing Elijah referred to ordinary movements intended to comfort him rather than violent shaking.
Garcia described the demonstrated movement as “a very small non-dangerous motion of one to two inches.”
She also challenged statements concerning the possibility that Clay had struck Elijah against his shoulder while burping him, noting that investigators had initially questioned him about a suspected clavicle fracture that was later determined not to exist.
According to Garcia, Clay was attempting to explain medical findings he did not understand rather than admitting to assaulting his son.
The defense also questioned whether prosecutors had established when Elijah’s older injuries occurred or who had been caring for him at the time.
Garcia emphasized that multiple family members participated in Elijah’s care and argued that the evidence did not establish that the chronic injuries occurred exclusively while he was with Clay.
Addressing the medical evidence, Garcia cited testimony from Drs. John Galaznik, Roland Auer, Judy Melinek and Evan Matshes concerning possible alternative explanations for Elijah’s brain hemorrhaging and fractures.
She argued that prematurity, restricted fetal growth, potential bone fragility, underlying illness and circulatory complications could account for findings prosecutors attributed to inflicted trauma.
Garcia noted that some rib fractures showed signs of healing, rather than representing acute injuries occurring immediately before hospitalization.
She also cited defense testimony questioning whether findings initially described as skull fractures were anatomical variations known as accessory sutures.
The defense challenged the prosecution’s interpretation of Elijah’s intracranial bleeding, arguing that older subdural collections could bleed again without necessarily establishing a new traumatic event.
Garcia also cited testimony involving possible inflammation, venous thrombosis, infection-related clotting abnormalities and complications associated with prematurity.
The prosecution also addressed whether complications during Elijah’s medical treatment could have broken the causal connection between Clay’s alleged actions and the child’s death.
Citing People v. Funes, People v. Moncada and People v. Jones, Kuo argued that medical treatment and subsequent complications do not necessarily eliminate criminal responsibility when an underlying assault creates the need for treatment.
She maintained that Elijah would not have required intubation without the injuries prosecutors attributed to Clay.
The filing also cited medical testimony that Elijah was experiencing unstable vital signs and other serious complications before intubation, and that the medical team acted within the standard of care.
Garcia, however, argued that Elijah’s fatal deterioration followed complications during intubation at Oakland Children’s Hospital rather than an assault by Clay.
She cited testimony questioning the necessity of intubation and addressing the cardiac arrest that followed an unsuccessful initial attempt.
The defense also identified pneumonia as a possible contributing condition, although Garcia acknowledged that it had not established medical malpractice as the cause of death.
Garcia urged Ellis not to “compound the tragedy of Elijah’s death with the continued travesty” of Clay’s incarceration over what the defense maintained was a medical tragedy rather than criminal abuse.
In rebuttal, Kuo returned to Clay’s statements, asserting that he had described having “an insane temper” and experiencing a “momentary lapse of weakness” that led him to handle Elijah too forcefully.
Kuo argued that the absence of certain external injuries did not rule out abusive head trauma and disputed the defense’s explanation involving bone fragility.
She maintained that Elijah would not have required hospitalization and intubation without injuries attributable to Clay.
Following a brief recess, Ellis returned to deliver his ruling, describing the proceeding as one of the most unusual cases he had encountered during more than three decades in the criminal justice system.
“This has to be maybe the most unusual case I’ve seen in my 30 some odd years,” Ellis said, referring to the extended hearing and repeated presentation of medical experts.
Ellis explained that the case had developed through successive rounds of testimony, with each side presenting specialists to address findings introduced by the other.
Turning to Clay’s statements to investigators, Ellis rejected the prosecution’s characterization of those remarks as an admission.
“I know he wasn’t making a confession,” Ellis said, explaining that the statements appeared to reflect an attempt to understand how Elijah’s injuries might have occurred.
Ellis acknowledged that the statements were not necessarily favorable to Clay but said their significance depended on whether the medical evidence established that the described handling could have caused the injuries.
The judge identified the conflicting medical testimony as central to his decision, describing Magaña as persuasive while also crediting the testimony of Auer and Melinek.
“I thought that Dr. Auer and Dr. Melinek were both pretty persuasive,” Ellis said.
“This is a causation case,” Ellis explained, emphasizing that the evidence supported competing interpretations involving abusive head trauma, prematurity, underlying illness and complications during medical treatment.
Ellis acknowledged that the prosecution had presented a reasonable interpretation of the evidence but concluded that the defense had also offered a reasonable alternative.
He noted that medical malpractice, even if established, would not ordinarily constitute an independent intervening cause sufficient to eliminate criminal liability. However, the more fundamental question was whether Clay had committed the underlying criminal act.
Ellis explained that the preliminary hearing required sufficient cause to believe an offense had occurred and that Clay was responsible.
The judge emphasized that the evidence was largely circumstantial and that competing medical opinions left significant uncertainty about what caused Elijah’s injuries and death.
“The reality is, sometimes you just don’t know what happened,” Ellis said.
He described the evidence as presenting “one reasonable conclusion that goes to guilt” and “a reasonable conclusion that goes to innocence.”
Ellis questioned how a person exercising ordinary caution could determine which medical experts had accurately identified the cause of Elijah’s injuries.
Although prosecutors argued that their expert testimony was sufficient to advance the case, Ellis declined to accept that reasoning.
“I don’t think in good conscience you can do that,” Ellis said.
The judge ultimately concluded that the evidence did not establish sufficient cause to hold Clay to answer on either charged offense or any lesser-included offense.
“I’m not gonna find that there’s sufficient evidence to move the case forward,” Ellis ruled.
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