By Jojo Kofman and Madi Whittemore
(Editor’s note: The Vanguard the Clay case, and our coverage of it, is part of an ongoing investigation.)
SOLANO, CA – Tre’ Kenneth Clay, a father facing wrongful accusations of the murder of his two-month-old son, as reported by The Vanguard, was in Solano County Superior Court last week in front of Judge Dan Healy for the final day of the motion to dismiss.
Clay has been incarcerated since 2021 when his son, Elijah Clay, died at Oakland Children’s Hospital after Elijah’s mother noticed he was pale, bruised, and breathing shakily, according to the preliminary hearing transcript.
As of Feb. 2, the Deputy Public Defender Jeannette Garcia also filed a Motion to Dismiss for 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.
Amid Dr. Raven’s “inconsistent testimony and contradictory statements,” as noted by Clay’s mother, Michelle Lopez, in an Elijah’s Truth Journey press statement, previously reported by The Vanguard, Elijah was medically misdiagnosed and died because of a brittle bone condition and not the alleged Shaken Baby Syndrome (SBS) from repeated abuse.
Wednesday’s hearing presented various experts attempting to determine whether Elijah’s death was caused by abuse or an underlying condition, such as brittle bone disease.
In weighing this, Judge Healy stated, “If this child suffered from a medical condition that had brighter lights tended to the situation that would have discovered that this is a frail child and that Mr. Clay then had been wrongfully accused and confined for several years, there’s something really wrong with that.”
DPD Garcia first called Dr. Gerard Pals, an expert molecular geneticist, to testify about Elijah’s death and brittle bone condition.
Dr. Pals also authored a Feb. 13 report in response to Dr. Raven’s testimony where he disputed Dr. Raven’s claim that the injuries causing Elijah’s death were sustained from repeated abuse.
Instead, Dr. Pals asserted the “fractures” indicated by fibrous tissue and identified by Dr. Raven were skull sutures—where parts of an infant’s developing skull come together.
When questioned by DPD Garcia regarding the fractures identified by Dr. Raven during Dr. Pal’s Wednesday testimony, he once again contended the fibrous material Dr. Raven saw on Elijah’s skull during the autopsy is “evidence of a suture instead of a fracture.”
Dr. Pals made clear accessory sutures are commonly found in brittle bone disease, and while they often may appear as fractures on radiology imaging, they are not.
Dr. Pals noted that while other bones heal through fibrous tissue and callus formation, flat bones such as the skull do not and instead heal through intra-membrane ossification, leading Dr. Pals to propound that Dr. Raven’s claims were “total nonsense.”
When asked by DPD Garcia about if there were other possible explanations apart from the presence of fibrous material indicating accessory sutures in Elijah’s skull, Dr. Pals confidently stated, “No, there is no other explanation.”
During a tense cross-examination, Deputy District Attorney Barry Taira drilled Dr. Pals about Elijah’s injuries being consistent with abuse instead of a brittle bone condition.
“It is my opinion that radiology evidence can never be evidence of abuse; radiologists can diagnose fractures, not intention,” Dr. Pals stated, confirming Elijah’s bruising was not in place of fractures—which is evidence not of abuse, but evidence of brittle bone disease.
When asked by DDA Taira if the injuries on Elijah were intentional, Dr. Pals said no, explaining he believes the first fracture occurred during the birth due to premature birth trauma including damage to the brain already made, because the skull was too fracturable due to the presence of congenital accessory.
“Of course you’re right. I can never exclude intentional trauma, but I don’t think that’s what happened here,” said Dr. Pals.
“The evidence that’s being reported by Dr. Raven is just not true. There is no fracture…There was no fracture in the skull at all,” Dr. Pals told the Court.
Following Dr. Pals’s testimony, Professor Keith Findley was called to the stand by DPD Garcia to testify about Clay’s previous Defense Attorney Gurjit Pandher’s alleged incompetence to defend Clay and cross-examine witnesses during the preliminary hearing.
Professor Findley asserted that Defense Attorney Pandher’s handling of Clay’s preliminary hearing showed a complete failure to recognize the serious errors in methods and conclusions rendered by Dr. Raven.
Professor Findley expressed grave concerns with Defense Attorney Pandher’s lack of understanding of the medical issues in the case, leading him to not explore alternative explanations, aside from abuse, during the preliminary hearing.
Professor Findley said Pandher needed to “investigate the medical science thoroughly” because Elijah’s injuries “could have occurred from birth or some other non-abusive conduct.”
In underscoring the importance of having informed counsel in cases such as Clay’s that are almost wholly based on the medical expert’s opinion according to Professor Findley, he stated, “These are very unique types of cases in criminal law.
“These are cases where the medical opinion often comprises the entirety of the case, all the elements of the case. Because these are so science dependent, so heavily dependent on medical scientific opinion evidence, in order to defend them defense counsel needs to understand the medical science and be prepared with responses to it.”
Dr. Raven concluded it was abusive trauma that causes skull fracture and subdural hematoma, which almost assumes it was caused by abuse or non-accidental injury, according to Professor Findley, who added, “The problem is that she concluded it was abuse, and completely failed to consider any other possibilities.”
Findley, who asserted the evidence in this case that formed the central argument of the prosecution was opinion evidence, noted, “One should have been on high alert to the possibility that the medical opinion was wrong, there were alternatives, and that further investigation and research competing expert opinions would be absolutely essential to adequate representation.”
Concluding his testimony, Findley also highlighted Defense Attorney Pandher’s failure to utilize a text message sent prior to the preliminary hearing by Dr. Raven to a morgue technician.
“This is an incredibly complicated case and that report makes it almost impossible for me to commit to abuse/homicide,” the text message stated as noted in court documents, clearly exhibiting Dr. Raven’s doubts about whether or not repeated abuse was really responsible for Elijah’s death.
Despite Defense Attorney Pandher claiming he “never saw it,” the prosecution asserted it sent over the text message evidence to the defense counsel prior to the start of the preliminary hearing.
Professor Findley yet again cast doubt on Pandher failing to see or use the text message as a compelling argument during the preliminary hearing and stated, “It has to be either a failure by the prosecution or a failure by the defense…but if it’s the latter that would be deficient performance by defense counsel…”
Despite Judge Healy’s admitting he found Dr. Pals and Professor Findley to be very “compelling” expert witnesses, he expressed concerns regarding the need for further forensic testing of Elijah Clay, asserting this would give the court a “dispositive” answer to the question of whether or not Elijah suffered from a brittle bone condition.
Ultimately, Judge Healy decided to continue Clay’s case and give both attorneys an opportunity to agree on re-testing, saying, “I think it’s relevant to the (dismissal) motion. In my mind it’s the ultimate question. It is the thing that if counsel had done and got a proper result then things would have been a lot different. If there had been evidence of that presented at the preliminary hearing, I have no doubt there’s a significant likelihood of a different outcome…”
The court will reconvene March 26.
