VANGUARD COURT WATCH INVESTIGATION: Judge rejects motion to dismiss murder case despite acknowledging prosecutors may not be able to secure conviction

(Editor's note: The Clay case and The Vanguard's reporting on it are part of an ongoing investigation.)

FAIRFIELD, CALIFORNIA – Tre' Kenneth Clay, a father who appears to be wrongfully accused of murdering his 2-month-old son, Elijah Clay, appeared in Solano County Superior Court Wednesday for the final day of proceedings to dismiss charges of assault on a child with killing on demand, the Vanguard reported.

Judge Dan Healy ultimately denied the motion to dismiss, despite new scientific tests diagnosing Elijah Clay with osteogenesis imperfecta (OI) and indicating that the child's death was caused by the disease and not by the alleged repeated abuse, as Deputy District Attorney Barry Taira alleged.

On Feb. 2, Assistant Public Defender Jeannette Garcia filed a motion to dismiss Clay's assault causing death charge, alleging incompetence on the part of the previous defense attorney and perjury on the part of the medical examiner, Dr. Katherine Raven, according to the court's official motion to dismiss.

As Vanguard previously reported, the lead medical examiner in the 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.

But just a day before the hearing, Dr. Raven sent a text message saying, “This is an incredibly complicated case and this report makes it almost impossible for me to confess to abuse/murder,” according to court documents seen by The Vanguard.

At Wednesday's hearing, Judge Healy told the court there were two key issues for this hearing.

The first question, the judge said, should address whether previous defense counsel Gurjit Pandher failed to meet appropriate constitutional standards. The second question is whether the Clay case demonstrates a colossal injustice in terms of the “unwillingness” of any particular individual to have sufficient integrity to investigate the issues raised in this case.

DDA Taira then asked if Judge Healy meant that he lacked integrity. In response, Judge Healy stated that he wished both parties had agreed on a lab to do the testing eight months ago, noting: “I think it is absolutely clear to me that your disinterest in science and your disinterest in the truth in this case is incredibly palpable and depressing. That being said, your position is incredibly depressing and I would like to at least believe that your office is seeking the truth.”

Judge Healy then addressed the court regarding the constitutionality of Pandher's previous conduct in the case.

DPD Garcia, referring to defence expert witness Professor Keith Findley, said that much of the available information on neuropathology available for questioning by the coroner was originally contained in the reports. However, she added that Pandher did not have this information from the reports and that Pandher did not consult doctors or undertake any other consultations.

“He admitted to speaking to a doctor who had not yet completed his report and he conducted a preliminary hearing without having all the medical information. If we just review the reports, much of it does not make sense. The child was born premature and had growth retardation. 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 being absent for two hours the day Elijah died did not explain all of the medical injuries. He accused Pandher of not only not using all of the information available to him.

However, he did not explain the previous text message between the coroner and his assistant expressing doubts about whether a murder charge might be present.

“Pandher did not look at the medical information, he had no evidence and he did not challenge any statements. All of this suggests that the consultation was inadequate,” Garcia said.

Garcia further pointed out that they now have medical information proving the connection to osteogenesis, and stated: “The sheriff had previously questioned Tre'Kenneth Clay for several hours, and no evidence was found in the preliminary hearing that he had abused his son Elijah.”

Garcia added, “If this is inadequate representation by counsel, we want a new preliminary hearing.” She said the case is not currently in trial, but she believes bias has been proven in this case.

DPD Garcia explained that even normal handling of a child with OI such as Elijah could result in broken bones, and emphasized that because the case is in the pretrial stage, only inadequate legal assistance is required as a prerequisite for granting the 955 Motion to Dismiss.

Turning to DDA Taira, Judge Healy asked what efforts had been made to complete the scientific testing, adding that in his opinion “none” had been made.

DDA Taira responded that the basis of Application 995 before them was that Pandher had been ineffective, pointing out that Pandher had been dealing with the case for six months.

Taira insisted: “It's been almost two years. In 2021, they had the case as well, they had it for five months. If the lawyer says that Pandher is not able to find the only doctor who can testify to this, that is an exaggeration. The lawyer had 2.5 years to do this. They had much more time.”

Judge Healy said to the prosecutor: “If the jury sees what I saw, on what basis could you obtain a conviction?”

But then the judge agreed with the prosecution's contention that the previous attorney's representation did not violate the Constitution and ruled that the case “must proceed to trial.” He denied the motion to dismiss and then remanded the case to another judge to decide bail.

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Keywords:

Assistant District Attorney Barry Taira Assistant Public Defender Jeannette Garcia Elijah Clay Medical Examiner Dr. Katherine Raven Judge Dan Healy Judge Denies Motion to Dismiss Osteogenesis Imperfecta (OI) Homicide Case Solano County Superior Court Tre' Kenneth Clay