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A former police employee said he killed a man in ‘a gay panic’ — an actual legal defense that worked

After James Miller retired from the Austin Police Department, he took up guitar, strumming the instrument at a nearby musicians’ bar, trying to put together a jazz band and getting together at the house of David Spencer, a 32-year-old neighbor and a saxophonist who shared his passion.

In September 2015, after a night of music and drinking at Spencer’s house, Miller testified, his younger neighbor made a fatal mistake: He moved in for a kiss.

“We were playing back and forth and everything, and I just let him know — Hey, I’m not gay,” Miller, 69, said in an affidavit, according to Austin NBC-affiliate KXAN.

“We been playing. We’re musicians and all that kind of stuff, but I’m not a gay guy. Then it seemed like everything was all right, and everything was fine. When I got ready to go — it seemed like [expletive] just started happening.”

Then, he said, he pulled out a knife and stabbed Spencer twice.

Miller showed up at a police station a few hours later, at 3:45 a.m., according to a police report obtained by the Austin American-Statesman, and said, “I think I killed someone. … I stabbed him.”

He was charged with murder.

Three years later, the former police employee claims that the killing was self-defense and that he was in a “gay panic” after being hit on by another man.

Such claims are legitimate, viable defenses in all but two states — California and Illinois — despite the work of LGBT advocates and a resolution by the American Bar Association to have the defense banned.

In Miller’s case, the defense was successful. Jurors did not find him guilty of murder or manslaughter. He was convicted of criminally negligent homicide, but he will not spend a day in prison.

The former police employee was sentenced to six months in jail. He will have to complete 100 hours of community service, pay $11,000 in restitution to Spencer’s family and use a portable alcohol monitoring service for at least a year. He will also be on probation for a decade.

The case’s disposition outraged LGBT advocates, who say the law gives non-straight people second-class citizen treatment.

“It’s hard to believe that something like this exists,” D’Arcy Kemnitz, the executive director of the LGBT Bar Association, told The Washington Post. “This is something from the very darkest of ages, based on the idea that if a gay guy hits on a straight guy, then the straight guy gets to do whatever he wants to do to him, including a homicide.”

Defense attorneys have an obligation to provide a “zealous defense” of their clients, Kemnitz said, but such defenses are “playing on the fact that LGBT people are considered ‘others’ or outside what is normative or not as valued as others in society.”

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Miller, who, at 5 feet 4, is least eight inches shorter than Spencer was, testified he felt threatened in Spencer’s home.

“He had height advantage over me, arm length over me, youth over me,” Miller said, according to the American-Statesman. “I felt he was going to hurt me.”

“It was so uncharacteristic of Mr. Miller that for him to engage in this behavior clearly had to be an act of self-defense,” said Charlie Baird, Miller’s defense attorney.

Prosecutors argued the argument was bogus because Spencer never threatened the older man or had any intention of hurting him. Miller told the court he and Spencer never fought.

Miller did not have “so much as a scratch on him,” prosecutor Matthew Foye said, according to the American-Statesman.

The American Bar Association’s resolution urged lawmakers across the United States to “curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defense.”

Kemnitz said there is active legislation in several states to stop defense attorneys from being able to use a gay panic defense.

She said the defense re-victimizes a person who has been attacked, but also sends a message to other marginalized members of society.

“If there’s a secondary chilling effect, when an individual gets to attack or indeed murder someone and walk away with a slap on the wrist or scot-free, it tells us that we’re still vulnerable,” she said.

This post incorrectly stated that James Miller is a retired police officer. He was a civilian employee of the Austin Police Department. This post has been corrected and updated.  

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