Actual Innocence

On May 19, 1998, just after classes let out at Austin High School, someone shot a school-employed hall monitor with a BB gun from a car in the parking lot. William Claypool wasn't seriously injured, but he reported the incident to the Austin Independent School District police. He told an AISD officer that the shooter was a student whose name he didn't know. Later, in the school yearbook, Claypool identified the student he believed had shot him from the passenger seat of the car.

What Claypool hadn't seen, however, was the driver, leaning over his passenger to fire the gun. The next day, an AISD officer pulled senior Cleo Hill out of his art class final exam to question him; eight days later, Hill was arrested and charged with assault with bodily injury. In 2000, after a long-delayed trial and eventual plea bargain, Hill was sentenced to two years' probation and paid almost $10,000 in fines and legal fees. In the decade since, Hill has lived with a criminal record, enabling him to work only at minimum-wage jobs and forcing him to live in substandard housing.

And there's an additional, central problem: Cleo Hill is innocent.

In Texas over the past decade, during which "actual innocence" has become a prominent legal concept, there have been only about 45 prisoner exonerations of any sort. To date, each has been that of an inmate serving hard time for a felony he or she didn't commit. Misdemeanor convictions greatly outnumber felonies and also carry serious consequences – yet misdemeanor exonerations are virtually unheard of. Men like Hill, wrongfully convicted of misdemeanor offenses, rarely claim the headlines. Next month, however, Hill and his attorney, Marjorie Bachman, intend to defy those odds and be the first to file a writ of habeas corpus in an attempt to overturn Hill's conviction and clear his name.

"This is the first filing to my knowledge [in Texas] of a writ of actual innocence for someone who's never been in jail," said Bachman. "In this case, Cleo wants to go to nursing school, something he can't do with an assault misdemeanor on his record."

Sight Unseen

In the spring of 1998, 18-year-old Hill was about to graduate from high school – he needed only to pass his finals. As he was leaving school on May 19, he was looking for a ride to his dad's house in South Austin. Doug Clark, a kid he had played with on the football team but who had since dropped out of school, was on campus and offered him a lift home. Hill got into the passenger seat of Clark's Hyundai Elantra, and they drove around to the front of the school where a hall monitor, Bill Claypool, was directing the afterschool parking lot traffic.

According to the statement Hill gave the AISD police the next day, this is what happened next: "Bill, the hall monitor, told Doug to move his car because he was blocking cars in. I guess Doug got mad at Bill for telling him to move, because he said Bill was pissing him off. Doug reached under his seat and pulled out a BB pistol. Before I could say anything, Doug leaned across me and shot the pellet gun twice out the window."

Since Hill had leaned back in his seat, he said, he couldn't see where Clark was shooting, but when he caught a glance, he saw Claypool grabbing his leg.

According to the police report, after the first shot, Claypool radioed AISD Police Officer Zac Gorbet that a student was shooting blanks. After something hit his leg, however, he realized it was a BB or pellet gun. Although a photo in the police file shows a mark on his shin (noted as a "shelt," apparently a typo for "welt") where he had been hit, he was not severely injured and apparently did not seek medical attention. When Gorbet arrived, the car was gone. Looking through the school yearbook, Claypool believed he had found the shooter: senior Cleo Hill. He didn't mention Clark. (Contacted recently about the incident, Gorbet reviewed the file and said that as far as he can remember, it accurately records what happened.)

Meanwhile, Clark had driven Hill home. "I was just in shock," said Hill, recently recalling the afternoon. "I asked him why he shot that guy, but he told me not to worry about it."

Home that night studying, Hill knew he'd have to speak to the school administrators the next day. "I remember thinking it was a big deal," said Hill, "but since I played football and track, that I'd explain what happened and it'd all get cleared up."

Hill showed up the next day to school and saw a message written on the chalkboard of his art class: "Cleo Hill come to the office immediately." The teacher let him start his final exam, telling him to go to the office afterward. In the middle of the exam, however, Gorbet came to the classroom and summoned him. According to Gorbet's offense report, Claypool was stationed in the waiting area of the office in order to look at Hill passing by to confirm that he was the person who shot him.

"Officer Gorbet told me, 'Oh Cleo, it's no big deal, just tell us your side of the story, and you're free to go,'" recalled Hill. Hill told them what had happened, and that Doug Clark had been the shooter. Gorbet typed up his statement, had him sign it, and let him go. Hill was sure he was off the hook.

Although Claypool was convinced that Hill had fired the BB gun, Hill didn't fit the likely profile of a gun-toting kid. In addition to his athletic involvement, he was on the honor roll with nearly perfect attendance and served as a peer mentor at the school; during summers, he worked as a city of Austin lifeguard. His supervisor at the Rosewood Neighborhood Pool in East Austin, Milton Sumpter, said recently that Hill was a leader among the other lifeguards. "He was really responsible and outgoing and the only one I didn't have to tell to do his job." He was preparing for college, hoping to run track at Division II schools that were offering scholarships. He had never been in trouble at school before, Hill says, a memory confirmed by Charles O'Kelley, Hill's track and football coach. "Cleo didn't miss a day," O'Kelley said. "He had a great smile and never had any problems."

Zero Tolerance

After filling out an incident report and probable cause affidavit, Gorbet passed the case along to the Austin Police Department. On May 27, 1998, a week after the incident, Hill was playing pool at a club when the local TV news flashed his track photo and announced a warrant for his arrest. The next day, his dad hired a lawyer and Hill turned himself in; he was photographed, fingerprinted, and put into a crowded holding cell. "I'd never been to jail," said Hill, "and I was scared shitless." He tried to keep his hopes up that someone would listen and let him go, but it didn't last. "By the time I got to court to post bail," said Hill, "I knew I was screwed."

Although Hill's parents insisted that he had not been the shooter, school district officials were eager to enforce "zero tolerance" policies for weapons on campus. There were district hearings to debate whether or not Hill should be able to graduate, and if so, whether he should be able to take part in the ceremony. The Statesman reported faculty outrage that Hill was not immediately expelled, and the Chronicle ran a brief story (see "Have Gun, Will Graduate," May 29, 1998) quoting several teachers demanding Hill be expelled and linking the incident to a recent school shooting in Oregon in which two students were killed. The story did not mention Hill's claim of innocence. The school reaction may also have been aggravated by racial tension, since Claypool is white and Hill is African-American – and although Hill was a popular athlete, most students still socialized primarily along racial lines.

"Was Austin High divided? Yes," Hill remembers, "but not when it came to sports." He spent afternoons and weekends swimming at Barton Springs Pool, rock climbing at the greenbelt, and canoeing on Lake Travis. Given the extent of his extracurriculars, his group of friends included kids from every economic and racial background.

After the shooting, that all went away.

'A Young Knucklehead'

And what about the actual shooter, Doug Clark?

At the time of the shooting, Clark had already dropped out of school after he was suspended for fighting. "I was just a young knucklehead," said Clark. "I'd just had a kid and was out on the streets trying to make some money."

After Hill had been questioned by the school police, his father went to find Clark in the Rosewood apartments where he stayed. "He told me that Cleo was in trouble and I needed to go to the school and clear it up," said Clark. The next day Clark went to speak to the principal at Austin High. While he told school administrators that Hill hadn't shot the BB gun, he stopped short of confessing himself. He doesn't remember if a police officer was present at the meeting. "I wasn't brave enough to say, 'I did it,'" said Clark. There's apparently no record of his conversation with school administrators or police. He was subpoenaed as a defense witness for Hill's trial, but he didn't show up after he wasn't called to testify on the first day.

Clark now says he wants to set the record straight. "[Hill] didn't do it," said Clark. "He was just riding around with me in the passenger seat. I reached my hand past him with the BB gun and shot out a couple times, so it looked like he was doing it."

But without an outright confession from Clark, it might be understandable that AISD continued to target Hill – both denied being the shooter, and Claypool's eyewitness identification was of Hill. "It happened exactly the way it was written in the police report," Claypool told the Chronicle recently, although he was surprised to hear that Clark has since admitted shooting him. (Claypool, 61 and retired, now says the pellet caused a bone chip and subsequent leg problems.) Hill tried reaching out to his coaches for support, but since he wasn't allowed to be on campus, he could only telephone them. Despite Hill's four years on both the football and track teams, only one coach called him back. "He told me that he was trying to retire and that he was sorry, but he couldn't stick his neck out for me." Unfortunately for Hill, the coaches he'd been closest to, like O'Kelley, had moved to other schools earlier in the year, so they weren't around to vouch for him. "If the coaches had known, they could've done something," said O'Kelley, who only learned of the incident later.

One person who did speak up for Hill was Anita Hardeman, head of the Austin Interfaith Summer Youth Employment Program, who had worked with Hill for several summers. She wrote a letter of support to the judge, saying that, "Cleo is not, nor has he ever been mean-spirited, vindictive or violent toward others, and I fear there has been some mistake."

The damning evidence against Hill was Claypool's eyewitness identification. But according to both Hill and Clark, Claypool simply didn't see Clark sitting in the driver's seat, reaching over his passenger. From Claypool's perspective, it appeared that Hill was the shooter. It's also possible that the suggestive identification technique Gorbet used – asking Claypool to observe only one student that the officer himself was bringing to the office – reinforced Claypool's conviction that Hill had shot him. "I couldn't tell you then, and I can't tell you now if [Hill] did it," said Gorbet, who said he followed school district procedures to gather evidence. "I do what I do and do the best that I can and hope justice prevails."

Panic and a Plea

In the wake of his arrest, the bright future Hill had imagined for himself quickly disappeared. "After all that news exposure, there were a lot of slammed doors," said Hill. The one college that maintained its scholarship offer was Langston University in Oklahoma. Hill hadn't wanted to go so far away from home – it would be more expensive, and he wanted to help his parents with his brothers and sisters – but he decided to accept his only college option. His life began to unravel. "I went away to school to get away from Austin and play football again, but I had to come back so much for the hearings that I couldn't play football. ... I missed too many practices." Some months he had to take the 20-hour Greyhound round-trip two or three times.

After one year in Oklahoma, where he earned a 3.89 grade point average, Hill decided to return home to get a job. His family, already stretched to the limit by the mounting attorneys' fees, couldn't also afford to pay his education and living expenses. He became less and less motivated and started to smoke pot. In June 1999, Hill was arrested for marijuana possession, adding to his mounting legal fees. In all, Hill estimates that his legal costs have exceeded $10,000. "That's a lot," said Hill, "especially when you don't have it."

On Nov. 7, 2000, 2½ years after the incident, Hill's trial finally began. He was convinced that a jury would exonerate him after they heard his story. During their deliberations, however, the jury submitted several questions to the judge. At first the questions concerned the details of the case: "Was Clark left- or right-handed?" But they then began raising sentencing questions. Hill panicked at the prospect of jail and decided on a last-minute plea of guilty, to assault with bodily injury – the most serious misdemeanor category, Class A – in exchange for two years of probation.

Probation was only the beginning of Hill's punishment.

One Minute Per Crime

Over the next four years, Hill's social circle, once vibrant with sports friends and classmates, grew considerably smaller. He looked for work to help pay his legal expenses, but his conviction stood in the way. "I would tell [employers] the whole story, but my explanations were never enough," said Hill. Although his credit was good, he could find only transitional housing, intended for ex-convicts. He became depressed and anxious, and he had trouble sleeping. He was smoking pot regularly to calm himself. "Anything I'd been interested in, I stopped doing," said Hill. "I was in a really, really bad place."

His criminal record dogged his every step. He made it through the interview to become a Houston firefighter, but once his conviction was discovered, he wasn't allowed to complete the process. For the jobs he did find, he was offered a lower salary. "At one group home, I was offered $8.75 an hour, even with six years' experience of patient care," said Hill. The market salary for a residential aide job, he says, was between $15 and $16 an hour. "When I apply for a job, I'm competing with people with degrees and no criminal history," said Hill. "I needed to live where people could vouch for me."

Hill's experience provides a bitter confirmation that guilty or innocent – and whatever the punishment – a criminal history is a life sentence. While it differs in important ways from prison time, it remains a heavy, lifelong burden. Professor William Kelly, director of the Center for Criminology and Criminal Justice Research at the University of Texas, says policymakers generally consider only concrete terms of punishment like probation or jail time, seldom the legacy of conviction itself. "The reality is that the punishment continues into the future," said Kelly. Once the jail time or probation period has ended, there will always be that question on any job or housing application: Have you ever been convicted of a crime? "If we could dip offenders into punishment and pull them out, it would be okay," said Kelly. "But that's not how it works."

Having a record can paradoxically force someone deeper into criminal activity. "Being labeled early on does nothing to ensure the likelihood of success," said Kelly. "In fact, it perpetuates a cycle of reoffending." Kelly concedes that many felony charges have justifiably significant, continuing consequences, but he believes a lifetime record is disproportional for a misdemeanor. "We have to ask ourselves, is this really the impact that we want to have?"

Moreover, says retired Travis County District Court Judge Jon Wisser, the sheer volume of misdemeanor cases creates considerable pressure just to keep things moving. In 2007, for instance, Travis County had 34,970 new misdemeanor cases. "A lot of judges," Wisser adds, "aren't that aware of collateral consequences of a criminal record." Still working as a senior active judge, Wisser spends a third of his time ruling on misdemeanor cases. "You can take about one minute on each case," said Wisser. "As a judge you know nothing about the underlying facts, just the crime and the recommendation."

The defendants don't have the same time constraints, but the pressure is just as real: to get the most lenient sentence. "Defendants have an overriding desire to avoid jail time, so they'll plead guilty to anything," said Wisser. The immediate fears of incarceration trump any long-term concerns about a future criminal record. As a consequence, actual questions of guilt and innocence are rarely considered in the misdemeanor courtroom, said Wisser. "We don't know how to find out who's guilty or not." Making matters even worse for those wrongfully convicted, no records are kept of misdemeanor proceedings.

Opening Doors

In 2001, Hill got a job as a nurse's aide at the Austin State Hospital. The regular employment did more than appease his probation officer, he says – meeting the patients gave him perspective about his own life. "I knew my story was bad, but I saw a lot of worse stories in that hospital," said Hill. He developed friendships with several patients and noticed that, unlike him, many of them had no outside support. "When you're working there, you're their family," said Hill. The experience lifted the veil of his depression, helping him change his anger about his situation into hope for his future. "I was always so mad that every door shut," said Hill, "but when I forgave, the doors started to open."

Despite his criminal record, in 2009 Hill became a clinical lab assistant at University Medical Center Brackenridge, where he still works today. However, Hill was barred from taking advantage of employer-sponsored education programs. While he was working at the hospital, for instance, he would have qualified for a scholarship to nursing school – except with a criminal record. In his current job, although Hill can't himself become a nurse because of his criminal record, he helps set up the annual clinical tests that nurses must pass for certification.

So Hill continues to try to clear his name. He has approached the NAACP and the American Civil Liberties Union, but clearing a misdemeanor record is a low priority – wrongfully convicted felons are offered more legal help. Innocence clinics must focus their limited resources on prisoners with harsher punishments.

A couple of years ago, Hill learned of UT-Austin's Texas Center for Actual Innocence. "Actual innocence" is a legal term describing someone who had no part in a crime, in contrast to a defendant who is ruled innocent for reasons of insanity or other mitigating factors. Unfortunately, the clinic accepts only felony cases. "We have very limited resources," said Tiffany Dowling, staff attorney for the clinic, "so we work on the cases with longer sentences." The most severe sentence for a misdemeanor is two years. Given the current backlog at the clinic – 500 felony cases and growing – a misdemeanor defendant would likely be released by the time an investigation could even begin, and meanwhile the clinic would be overwhelmed with requests for assistance.

In the 35 years he's been practicing criminal defense law in Austin, Texas Center for Actual Innocence co-founder David Sheppard can't recall a single writ of habeas corpus alleging actual innocence that's been filed in a misdemeanor case. Yet that's Hill's hope. Though Dowling had to reject Hill's case, she referred him to her predecessor, Marjorie Bachman, now in private practice. "I decided to take it because I thought the case looked interesting, because it was a misdemeanor," said Bachman. And Hill was very persistent. She agreed to represent him pro bono, and sometime next month will file a writ of habeas corpus – also known as a "writ of actual innocence" – on his behalf.

The Best That You Can

After a brief appearance in court in 2002, Doug Clark disappeared from Hill's life. Except for a chance encounter at Walmart, Hill and Clark hadn't been in contact for 10 years, until Hill contacted him in the spring of 2009. Clark says he had thought often of the case but didn't know what to do about it. "For me it was one of those dark secrets that you keep, something that eats at you," said Clark. "Now I'm seeing how it all panned out." Since the shooting incident, Clark has stayed out of trouble and has been working in his maintenance job for almost 10 years.

Clark said he knew at the time that the charges against Hill were a big deal, and he says he felt really guilty that Hill was taking the blame. "He was a good kid and didn't deserve it," said Clark. "He was the smartest one in our group and should've gone to college." When Hill explained to him he wanted to go to nursing school but needed Clark's testimony to get his record cleared, Clark agreed to give a statement to Hill's attorney. "I want to help him as much as I can," said Clark, but as a father of three, "it's hard not to wonder what will happen to me."

Hill, too, has his mind on his family. Hill met his wife, Chardae, and her baby, Hayven, in Austin in 2006, and they married in 2007. (He also has another child, a son who lives with his mother in San Antonio.) Though they have been a happy family since, he's tired of having to accept the second-class status that comes with his unearned criminal record. Working two jobs – he also works part-time as a phlebotomist at a pharmaceutical development company – Hill still can't apply for jobs where someone can't vouch for him, or even rent the family apartment. "Even though I'm the one who supports the family financially so she can take care of our daughter, I can't use my credit to rent us an apartment. We always have to go through her," said Hill. A nursing job would also offer higher pay. "I always liked helping people," said Hill. "Everyone in my neighborhood comes to me for first aid."

One evening last summer, at a playground near Lady Bird Lake, Hill watched then 4-year-old Hayven playing on the slide and talked of his hopes for her future. "I can see her in the liberal arts," said Hill, "maybe ballet or tap, something in the theatre." Nodding toward his wife nearby, he continued: "When I was single, I could survive. I didn't care what job I had, and I could always find somewhere to sleep. But it's not like that when you have a family. When you have a family, you want to do the best that you can."