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 officer 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 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.