A former cop said he killed a man in 'a gay panic' - an actual legal defense that worked 
 
 The "gay panic" defense is legal in Texas. The "gay panic" defense is legal in Texas. Photo: Norberto Cuenca, Contributor Photo: Norberto Cuenca, Contributor Image 1 of / 1 Caption Close A former cop said he killed a man in 'a gay panic' - an actual legal defense that worked 1 / 1 Back to Gallery 
 
 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." 
 
 SENDING A MESSAGE: Police Department's rainbow cruiser raises eyebrows 
 
 Then, he said, he pulled out a knife and stabbed Spencer two times. 
 
 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: "I think I killed someone. . . . I stabbed him." 
 
 He was charged with murder. 
 
 Three years later, the former police officer claims the killing was self-defense, and 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, and while he was convicted of criminally negligent homicide, he will not spend a day in prison. 
 
 The former police officer 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." 
 
 Miller, who is 5 feet 4, at 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 Austin-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 newspaper. 
 
 The American Bar Association's resolution urged lawmakers across the U.S. 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. ||||| AUSTIN (KXAN) - A jury on Wednesday sentenced James Miller to 10 years of probation and 6 months in the Travis County Jail. 
 
 Miller was found not guilty of murder Tuesday afternoon, but guilty of a lesser charge — criminally negligent homicide — in connection with the 2015 stabbing death of Daniel Spencer, 32. 
 
 Miller, 69, was also found not guilty of manslaughter. He faced two to 10 years in prison or 10 years probation. 
 
 In addition to the probation and jail time, he will also have to pay $10,000 in fines for restitution, have an alcohol monitor for a year or until a judge decides to remove it, 100 hours of community service and pay off the court costs. 
 
 The prosecution said Spencer was an upstanding member of our community, "who was killed by the defendant for no good reason." 
 
 The state called a number of witnesses to the stand, including the victim's mother. 
 
 "I have a huge hole in my heart. Something's wrong in the world when you lose your child before you go," explained Marsha Spencer. "I'm tortured by the thought of how Daniel died and I'm tortured by the fact that he suffered and that he was alone when he died. It's a loss that cuts deeply." 
 
 The defense argued that Miller acted in self-defense and so he should be eligible for the minimum punishment associated with the charge. 
 
 "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. "We're going to ask the jury to accord him probation and to allow him to return to his family and his home, and to the community." 
 
 The victim and the defendant were playing music and drinking together the night Spencer was killed. The defense argues Spencer came on to Miller, and he stabbed him in self-defense. 
 
 The prosecution said the evidence does not support the self-defense argument, pointing to blood evidence at the scene they say didn't match Miller's story. Further, prosecutors argued it could have been Spencer who turned down Miller's sexual advances. 
 
 Austin police were called around 3:45 a.m. on Sept. 21, 2015 from a service station at the 700 block of East 8th Street. Miller told Austin police "I think I killed someone," and, "I stabbed him." 
 
 The affidavit states that Miller said, "We were playing. We were doing the good music. We were playing back and forth and everything and I just let him know — Hey, I'm not gay. 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 alright and everything was fine. When I got ready to go — it seemed like [expletive] just started happening."
– A former police employee skirted murder and manslaughter charges in Texas this week when a jury sided with his so-called "gay panic" defense, the Houston Chronicle reports. James Miller, 69, testified that in 2015 he was at the house of neighbor David Spencer, 32, drinking and jamming on their instruments when the younger man tried to kiss him. "We were playing back and forth and everything, and I just let him know—Hey, I'm not gay," Miller says in an affidavit, per KXAN. "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." Miller apparently pulled a knife, stabbed Spencer twice, and showed up at a police station in the wee hours saying "I think I killed someone. ... I stabbed him." In his defense, Miller said Spencer was bigger and stronger and might hurt him. Prosecutors argued that Spencer didn't threaten or injure his neighbor, but on Tuesday an Austin jury rejected murder charges and found Miller guilty of criminally negligent homicide, sentencing him to 6 months in jail with 100 hours of community service and $10,000 in fines. Now LGBT advocates are speaking up against "gay panic" defenses, which are legal in every state except California and Illinois. "It's hard to believe that something like this exists," the executive director of the LGBT Bar Association tells 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." (This story has been updated: We originally reported Miller was an ex-cop; he was a civilian employee of the Austin PD.)