HARLEM — The mother of Islan Nettles, the transgender woman who was pummeled to death on a Harlem sidewalk 18 months ago, believes the man accused of her beating death should face hate crime charges.
James Dixon, 24, of Clinton Hill, was indicted for manslaughter and felony assault Tuesday for punching Nettles in the face on Aug. 17, 2013, causing her to fall and hit her head on the sidewalk and triggering a serious brain injury.
But hate crimes charges were not included.
Prosecutors allege that Dixon, who was among a group of seven men who encountered Nettles, 21, and two other transgender women friends, then continued to hit her in the face and pounded her head on the sidewalk.
Homophobic slurs were yelled before and during the attack, police said.
"I believe this should be a hate crime and I am trying to find out why it's not," said the victim's mother Delores Nettles. "He was saying slurs and that's the only reason my child was attacked."
Prosecutors would only say that "the grand jury considered all of the available evidence when making its charging decision" when asked if hate crime charges were pursued in the case, according to Joan Vollero, a spokeswoman for Manhattan District Attorney Cyrus Vance Jr.
Vollero declined to speak further about what prosecutors presented to a grand jury citing confidentiality rules.
While prosecutors and police believe that Nettles' status as a transgender woman played a role in the attack, New York state's law on hate crimes says that there must be proof that the individual attacked was "intentionally" selected "because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person."
Proving that Dixon attacked Nettles "because of" her transgender status proved to be difficult because witnesses could not provide enough details of what they heard before and during the attack, sources said.
There was also confusion over who was the assailant.
Police originally believed that another young man, Paris Wilson, was responsible for the attack. He was arrested and charged with misdemeanor assault before Nettles' condition worsened.
On Aug. 20, 2013, the day Nettles' mother pulled her off of life support, prosecutors say that Dixon went to Wilson's home and confessed to the brutal beating.
Dixon was escorted to the police station by Wilson's mother where prosecutors say he made video and written statements confessing to the attack.
Police doubted the confession, according to sources. However, witnesses to the attack identified both Wilson and Dixon as the attacker.
Dixon's lawyer, Norman Williams Jr., said he had questions about the delay in charging his client.
"Of course things seem to be odd." he said.
Dixon was ordered held without bail after pleading not guilty. He is due back in court March 19.
NYPD sources say they were finally able to sort out who the attacker was by having the witnesses describe exactly who attacked whom in explicit detail.
A major obstacle in the case was a reluctance of some witnesses to provide a detailed account of the night's events.
All charges against Wilson have been dropped. Prosecutors now say that although Wilson was present during the incident, he did not attack Nettles.
"These kind of determinations are very fact specific," said Michael Silverman, executive director of the Transgender Legal Defense and Education Fund.
Silverman said he has not examined the case and did not have enough information to determine if hate crime charges were appropriate.
The Nettles case makes clear the need for transgender status to be included as a specific protection under the state's hate crime laws, Silverman said.
State laws consider gender a protected class, but that category typically refers to sex.
Advocates have been pushing for the passage of the Gender Expression Non-Discrimination Act, or GENDA, for years.
The law would add the designation of transgender to the hate crimes law and additionally forbid discrimination against transgender people when it comes to housing, public accommodations and employment.
"Transgender is not an exclusive category in the hate crime law," said Silverman.
"With criminal penalties, the courts are going to be very careful in interpreting the law."
The federal government currently includes transgender as a category under its hate crime law.
GENDA has passed at least seven times in the Assembly but has failed to be approved in the Senate.
Some transgender advocates also find themselves torn on whether Nettles' case should be prosecuted as a hate crime.
The New York Anti-Violence Project found that more than half of all victims who went to police in 2013 to report an anti-LGBT attack against them were themselves placed under arrest.
"AVP also knows that increased penalties in hate crimes laws often harms those most likely to be criminalized, such as LGBTQ people, people of color and LGBTQ people of color," the group said in a statement.
Many advocates are also ecstatic that someone has been charged with a crime in an anti-LGBT death.
In spite of a 21 percent increase in reports of violence against transgender or non-gender conforming individuals as reported by AVP, advocates say prosecution rates remain low.
Five clients, including Islan Nettles, have been murdered in the 20 years Carl Siciliano, executive director of The Ali Forney Center, has worked with transgender and gender non-conforming teens.
"This is the first time charges have ever been brought," Siciliano said.
Murray Weiss contributed reporting