By Jojo Kofman and Madi Whittemore
(Editor’s note: The Vanguard and the Clay case, and our coverage of it, is part of an ongoing investigation.)
SOLANO, CA – Tre’ Kenneth Clay is facing wrongful accusations of the alleged murder of his two-month-old son, Elijah, as reported by The Vanguard, here in Solano County Superior Court.
Deputy District Attorney Barry Taira alleges Clay’s charge of assault on a child causing death is because of repeated abuse, while Clay’s defense team, including several medical experts, assert it’s highly unlikely the reported fractures were caused by abuse. Instead they highlight evidence of other diseases, such as brittle bone disease.
Motivated by the claimed wrongful accusations of her son, Michelle Lopez, Clay’s mother, has been working tirelessly to shine light on infant and toddler deaths resulting from medical misdiagnosis, particularly Shaken Baby Syndrome (SBS) and Abusive Head Trauma (AHT), according to Elijah’s Truth Journey press release.
The Innocence Network said Lopez’s experience as not unique, stating in the press release the SBS/AHT diagnosis “has served as the basis in thousands of cases where children have been separated from their parents and caretakers have been sent to prison,” adding, “caretakers otherwise described as loving, calm, and caring have been convicted of murder and sentenced to death or anywhere from years to life in prison.”
The Case and The Controversy
The primary forensic pathologist in this case, Dr. Katherine 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,” as stated in court documents.
On the night of the incident, at about 9:30 p.m. on Jan. 18, 2021, sworn peace Officer Clinton Morgan arrived at Oakland Children’s Hospital to respond to the death of a two-month-old infant, Elijah Clay, according to the preliminary hearing transcript. Upon arrival, Officer Morgan reported that Elijah had bruises on his legs and his face, stated the transcript.
According to Elijah’s mother, she had left Elijah with Clay while running a few errands that day. When she arrived back at home, she saw Elijah lying face up, “pale and cold to the touch,” and shakily breathing, according to the preliminary hearing transcript.
She noted to Officer Morgan she immediately called the Kaiser nurse line and was told to bring Elijah to the hospital, stated the transcript.
The dispute is rooted in larger issues surrounding flawed diagnosis of Shaken Baby Syndrome (SBS) and Abusive Head Trauma (AHT), discussed by Lopez, in Elijah’s Truth Journey press release.
Lopez characterizes her son’s story as one of these flawed medical misdiagnoses, or “medical kidnapping.” Lopez describes the “medical kidnapping” as “when medical professionals assume parents have abused a child instead of correctly diagnosing a major illness,” in Elijah’s Truth Journey press release.
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 the infant, stated Lopez in the press release.
Elijah’s Truth Journey press release states that despite its popularity in the early 2000s, the SBS hypothesis has never been scientifically validated, leading to numerous wrongful incarcerations and convictions,” according to a statement released in 2019 by the Innocence Network.
The Current 995 Motion to Dismiss
As of Feb. 2, 2024, the defense was on its sixth day of a filed Penal Code section 995 Motion to Dismiss for the count of assault on a child causing death against Clay. The 995 Motion to Dismiss arose because of alleged perjury in the forensic pathologist’s testimony during the preliminary hearing and sent text messages, and defense attorney Gurjit Pandher’s alleged incompetence.
In October 2021, Dr. Raven, the forensic pathologist who performed Elijah’s autopsy and was subpoenaed by DDA Taira to testify, sent a text to a Solano County morgue technician who was inquiring about updates in the case on behalf of DDA Taira—just a day before Clay’s preliminary hearing.
In what Lopez calls an “alarming” text message, Dr. Raven stated to the morgue technician, “This is an incredibly complicated case and that report makes it almost impossible for me to commit to abuse/homicide.”
However, when called to the stand by DDA Taira during Clay’s preliminary hearing just a day later, Dr. Raven stated Elijah died from an acute subdural hemorrhage caused by blunt force trauma that she and DDA Taira attribute to non-accidental injury or repeated child abuse by Clay.
However, Dr. Gerard Pals, an expert geneticist, called Dr. Raven’s analysis “a blatant misdiagnosis” in his report. Dr. Pals, in disagreement with Dr. Raven, wrote that “there is convincing evidence of brittle bone condition, either genetic or acquired…We do not see any evidence of non-accidental trauma (NAT).”
Doctor Pals noted various alternative explanations to Elijah’s death aside from child abuse, including how Elijah was born “very premature,” 34 weeks old via an emergency C-section, where he likely suffered from multiple birth trauma related rib fractures.
Dr. Pals asserted, “The obvious congenital malformations have also been ignored and/or misdiagnosed in the forensic pathology report,” further concluding Elijah’s injuries were not a result of repeated abuse.
Under continued direct examination, Dr. Raven confirmed she formed an opinion as to whether the blunt force trauma injury was accidental or intentional, stating, “At the time of this written report it was considered to be intentional, not accidental injury.”
Following this incongruence, Lopez filed a complaint with the medical board of California, stating, “Because of Dr. Raven’s perjury, she has caused an innocent human being to be falsely imprisoned. What she did is unethical, goes against the oath she took as an MD and should be illegal.”
Lopez further notes in the complaint that Dr. Raven’s testimony during the preliminary hearing was the “complete opposite” to what her text message to the morgue technician stated.
Defense’s expert witness Professor Keith Findley, who reviewed preliminary hearing transcripts, stated in his report, “Dr. Raven’s report and testimony reflect this kind of baseless, improper, and unexplained move to disguise or elide the probabilistic nature of the SBS/AHT determination. As noted, Dr. Raven simply asserts, without qualification (and incorrectly), that the death here was caused by blunt force trauma…Nowhere in her testimony does she acknowledge that alternatives are possible, that diagnostic error is an omnipresent risk throughout all of medicine.”
The 995 motion also highlights the claimed incompetence of Clay’s former defense attorney Pandher, who did not challenge any of Dr. Raven’s “unsupported conclusions” and failed to introduce exculpatory and favorable evidence during the preliminary hearing.
Professor Findley denounced Pandher as inept and lacking proper investigation skills in his report, stating the subdural hemorrhages were listed to have many possible causes including “remote accidental or inflicted trauma, birth trauma, or non-traumatic etiologies.”
None of these alternative exculpatory causes of death were explored by Pandher during the preliminary hearing, according to Findley.
“That was powerful evidence that could and should have been used to challenge Dr. Raven’s confidently expressed opinions at the preliminary hearing. Yet at no point did defense attorney Pandher refer to that text message, or explore with Dr. Raven how she could have gone from such uncertainty to a definitive determination by the time she testified. Counsel erred,” Findley asserted in the 995 motion.