Anti-gay crimes rarely prosecuted in Texas by name

Clattenburg's family is also furious Carmichael was the only suspect charged in the slaying.

Kyle Van Heynigen, who according to police reports went with Carmichael to Clattenburg's apartment before the murder, admitted to giving Carmichael the gun he used to shoot Clattenburg. Carmichael's initial report to police says Van Heynigen had no idea he was going to kill Clattenburg, though in his rambling appeal filed with the court last year he wrote, "I told him [Van Heynigen] that he [Clattenburg] kissed me then Kyle went into the appartment [sic] and got his gun and gave it to me. He knew how inraged [sic] I was and all my intentions."

Police eventually found Carmichael by tracking texts and calls Clattenburg had sent just before his death to Van Heynigen. When called in for questioning over a week after the death, Van Heynigen led investigators to the murder weapon, which he had buried for Carmichael in a dried-up Northside creek bed, police reports say.

Carmichael confessed to the murder when police questioned him 12 days later. "We looked at charging Van Heynigen, but determined there was insufficient evidence," said Herberg. "We all think that he knew more than what we were able to prove, but you've got to have proof to go into court."

Van Heynigen is, however, scheduled for court next month. Arrested last year near the 10-year anniversary of the 9/11 attacks, he stands accused of threatening to attack public officials in a series of rambling texts and Facebook posts ("I'm about to start a war," read one message.)

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Soon after Clattenburg's murder, Hicks says she began carrying a copy of the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, signed into law by President Obama in October 2009, into meetings with local law enforcement and county prosecutors. The bill expanded the 1969 federal hate-crimes law to include crimes motivated by gender identity, sexual orientation, and disability, while also providing about $5 million per year through 2012 to help state and local agencies investigate and prosecute hate crimes. The law also gave the feds greater leeway to conduct hate-crimes investigations and file charges that local authorities chose not to pursue.

When it became evident the Bexar County District Attorney's Office had ruled out hate charges in Clattenburg's murder, Hicks sought out representatives with the U.S. Attorney's Office in the Western District of Texas wanting to know how and if hate charges could be brought against Carmichael at the federal level. Hicks says she spoke with Bill Baumann, senior litigation counsel with the Western District. If the feds took the case, she recalled him saying, they risked getting a jury prejudiced against gays, making for a tough trial with an uncertain outcome. "He told me, 'All I'm sayin' is be careful what you wish for,'" Hicks recalled. "Frankly, I was shocked by the response." Baumann declined to be interviewed.

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