11:52, May 23 185 0 abajournal.com

2018-05-23 11:52:08
Was this a gay panic defense? Legal experts weigh in on controversial verdict

That a Texas man avoided murder and manslaughter penalties in his conviction for killing a neighbor has spurred a debate: Did he get away with the controversial “gay panic” legal defense?

James Miller, a former Austin, Texas, police employee, was found guilty last month of criminally negligent homicide in the 2015 death of Daniel Spencer. According to testimony, Spencer had invited Miller to his home in East Austin to drink and play music. Miller said in an affidavit that Spencer moved in for a kiss and grew angry when Miller rejected him. Then Miller stabbed Spencer twice. Miller later turned himself in to police, claiming self-defense.

Miller was sentenced to 10 years probation, six months in the county jail and 100 hours of community service. He must also pay $11,000 in restitution to Spencer’s family and use an alcohol monitoring device for at least a year. Several news media, including the Washington Post, Huffington Post and Atlanta Journal-Constitution called the trial tactic a gay panic defense.

But Miller’s attorney, Charlie Baird, claims his client didn’t use a gay panic defense and that Miller acted purely in self-defense. According to an NBC news story, Baird acknowledged there was no physical evidence to prove the victim had attacked his client.

“Miller testified that he believed that Spencer was making a sexual pass at him. Miller backed off and said: ‘I’m not gay.’ That was the end of the gay part of it,” Baird told the ABA Journal. “Miller was twice as old as Spencer and at least eight inches, maybe a foot shorter than Spencer. I think that’s why he felt like he had to resort to deadly force, because you can have deadly force in Texas without being armed. You don’t have to have somebody attacking you with a deadly weapon before you can use deadly force to defend yourself.”

He added: “Because neither Miller nor Spencer is/was gay, the gay panic defense could not have been employed.”

Prosecutor Matthew Foye was quoted by Austin television station KXAN saying the fact that the jury didn’t let Miller off on his self-defense claim “establishes that Daniel Spencer was a victim of a senseless killing by the defendant and he did not do anything to bring this upon himself.”

But the sentence has spurred anger among gay rights advocates and raised questions about what is a gay panic defense. Though the claim had been made in cases before, the gay panic defense gained notoriety in the 1998 Matthew Shepard murder trial. One defendant’s lawyer attempted to claim that panic inspired by Shepard making a pass at the defendant caused temporary insanity and led to Shepard’s murder. The judge rejected that claim, and the two men charged in the murder received life sentences.

In 2013, ABA House of Delegates passed a resolution urging “federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.” Two states—California and Illinois—have passed such legislation.

Stephen Saltzburg, a George Washington University law professor and an ABA Criminal Justice Section delegate who helped draft the ABA resolution, told the ABA Journal that it is difficult to make an informed judgment about whether a gay panic defense was used in this case.

“It is difficult and often unfair to attempt to judge the real nature of a charge or defense because people often react to situations with mixed motives and mixed emotions,” he says. “One can sometimes make an informed judgment by examining the closing argument in a case and seeing what was emphasized, but I did not have an opportunity to do so.

“If the defense were limited to a claim that the defendant reacted violently because a gay person made an advance, that would undoubtedly be the type of gay panic defense that the ABA has condemned. But if the defense was, ‘The defendant responded to aggressive and frightening behavior that included a sexual advance,’ that would be more akin to a typical self-defense claim that could be made irrespective of the sexual orientation of the allegedly aggressive actor.”

Speaking to NBC, legal expert Anthony Michael Kreis, who helped write the Illinois law banning the gay panic defense, also said the tactic can be hard to categorize because it can appear in different ways. He described a typical scenario as: “Someone of the same sex approached me, came onto me, hit on me, I reacted in this uncontrollable rage, and I unfortunately killed the victim.”

Kreis called the Miller verdict “repugnant” and said Miller’s punishment “doesn’t seem to fit the crime.” But he added that Miller didn’t claim it was only the discovery of the sexual orientation that led to him to stab Spencer.

“It was that this mix of the same-sex interaction and the rejection in combination,” Kreis explained. “It was that the victim’s stature and kind of aggressive tone created a scenario where he felt compelled to defend himself.”

He said that makes the case “different and worrisome,” noting that it will “prove difficult for people drafting legislation going forward to address those kinds of situations.”

D’Arcy Kemnitz, executive director of the National LGBT Bar Association who spoke before the ABA House vote on the resolution, declined to comment on the Miller case but condemns the use of gay panic defense.

“The gay and trans panic defense relies on unjustified fear of the LGBTQ community in America and promotes the belief that LGBTQ Americans deserve violence committed against them simply because of their gender identity or sexuality,” she says. “It is a repulsive defense that tells LGBTQ Americans their lives are worth less than others, and allows violent offenders back onto our streets. The use of this courtroom tactic is unconscionable regardless of the victim’s actual sexual orientation or gender identity.”