JUDICIAL  Jackasses

MOTION TO RECONSIDER DISMISSAL

 

 

 

 

IN THE DISTRICT COURT OF PAWNEE COUNTY

STATE OF OKLAHOMA

 

 

State of Oklahoma                                  ]                                                                                                                                                          ]                F I L E D    

                   Plaintiff                                    ]                        June 20, 2008

                                                                    ]   

          Vs.                                                     ]   

                                                                     ]             CF – 2006 - 167

John Edward Schoonover                      ]

                                                                     ]        

                   Defendant                               ]

                                                         

 

 

 

MOTION TO RECONSIDER DISMISSAL WITH PREJUDICE

 

The following is the original Motion To Dismiss filed April 29, 2008 with additional supporting documentation prior to the closing:

 

Comes now the Defendant John Schoonover, appearing herein Pro-se and as such being uneducated and untrained of the mechanics of the law claims the protections of Haynes v. Kerner 404 U.S. 519                             [1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991] and moves this Honorable Court by demurer to dismiss the above filed matter as a matter of law for reasons to wit:

 

 

1.   The Defendant has been charged in this Court with the charge of INJURY TO A MINOR CHILD (O.S. 10-7115) December 22, 2006.

 

 

2. This Defendant has further been served with Notice of Termination of Parental Rights in the same court.   That case being numbered  JD – 06 – 34.  

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3.  There can be no separation of the facts of the above two maters.  Therefore this court, not allowing the defendant to bring proper defense based on evidence supplied and stipulated to by the Department of Human Services concerning case no. JD-06-34 that stipulation being by Mikah McCray of DHS: “Mr. Schoonover left the room to get a bottle and when he returned, he found Elan on his back on the floor.”     [All ISP reports from genesis to date.]

 

 

The complaining witness, Mikah McCray, by her own words in her THIRD AMENDED PETITION as composed by Larry D. Stuart, District Attorney for Pawnee County in the matter of Elan Lee Montgomery Wheeler, JD - 06 – 34 states, “The natural father caused the injury to the minor child by failure to place said child in a safe place when he left the child unattended which allowed the child to fall and receive the injuries” {sic}.

 

4.  Therefore as the stipulation shows in case no. JD-06-34 that there was no child abuse under Statute O.S. 10-7115.

 

This is not “willfully or maliciously injuring or using unreasonable force.” As defined by title 10-7115 of the Oklahoma Statutes and not by any stretch of the imagination “wilfully and maliciously {sic} injuring or using unreasonable force” as is alleged in the INFORMATION. 

 

5.  As it is clear from the evidence supplied in case no. JD-06-34 no crime charged herein has occurred. 

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6  Further, calling for this court upholding this Defendant’s motion here at bar and dismiss the matter with prejudice is the fact that  plaintiff has based its case in chief primarily on hearsay evidence in that Mikah McCray has told all she has told, modified to suit her own interests, as gospel and all who have heard and parroted Mikah McCray’s orchestration have subtracted positive and added negative such as Donna Pace putting her signature on the ISP originated by Mikah McCray in blind faith for whatever self serving purpose she may have of her own.   All are acting as “eye witnesses” when it is nothing but hearsay within hearsay. 

 

 

To support this contention  this Defendant cites :  In matter of M.A.G 924 P2d 795,  In matter of M.A. 832 P2d 437,   Bias v. State 561 P2d 523,  Davis v. State 647 P2d 450 (hearing within hearsay),  Hill v. State 638 P2d 1128 (hearsay within hearsay) and finally Winkler v. State 745 P2d 1189.

 

 

7.  The long held rule of ethics of Canon 5 of the American bar Association holds that a prosecutor’s duty is to seek truth, not conviction.

 

The State, being the same prosecutor’s office as here at bar in the parental rights matter being heard in this court, the Honorable Mathew D. Henry has acquiesced to the truth and stipulated that no abuse  has taken place.

 

From this it is clear that this assistant prosecutor has failed in seeking truth, rather, is insisting on prosecuting an accident.

 

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ADDITIONAL DOCUMENTATION

 

In Chambers, this Defendant submitted the proposal of an Alford plea to any misdemeanor non child abuse charge with a penalty not exceeding a few months deferred sentence. 

 

This proposal was, in essence, acknowledgement by this Defendant of responsibility for the accidental injury that occurred the night of November 14, 2006, as described by Doctors Nebergall, Tony R. Hill and others November 15, 2006.  That is, not ruling out a fall such as happened as stipulated by Mr. Larry Stuart in JD-06-34 resulting in a subtle lucent line suggesting a non-displaced linear fracture of the right humerus.  

 

This Alford plea is not extended to the “break” into a “couple of different fragments” at a later date requiring more force than a simple non-displaced fracture, that is indication of, if Dr. Debbie Lowen’s testimony is true, evidence of careless mishandling by DHS of my son while in their custody resulting in damage to my son’s arm beyond the minor injury of November 14.  This second greater injury as described by Dr. Debbie Lowen of the

Childrens Justice Center

eight days later, if true, is the sole responsibility of the Pawnee Department of Human Services. 

 

This Alford Plea to the lesser minor accidental injury of the night of November 14, 2006, was accepted in chambers with a condition added by the prosecutor; that this Defendant additionally agree to the ‘voluntary’ signing away of his parental rights to his only son, Elan Lee Montgomery Schoonover.  Addition of such a stipulation is clearly an act of coercion with one goal in mind:  Termination of this Father’s right to raise his only son.     

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A son not the result of any spontaneous heated moment of passion; not the result of any carelessness or accident but deliberately planned months before conception for the purpose of the only possibility of perpetuation of blood line and “life beyond the grave” of this father as his only son carries with him all his father is with his body and mind created by his only Father into the future.  Destroying this natural linage is destroying history of ancestors.  Not unlike James Fennimore Cooper’s epic, it is destroying life.   I would be the last; I would not even exist in the mind of my child as my child would never know his Father.  An extremely excessive penalty for such a minor accident.  Not only the Father suffers, but also the Son.

 

Further, it was noted by the Oklahoma Court of Criminal Appeals in their dismissal of the appeal of the original Motion To Dismiss that the dismissal was due to the ‘misplacement’ of the original “Motion To Dismiss” Attachment and, like the mistake of allowing 20 seconds for this Defendant’s son to roll off the bed resulting in his minor injury the night of November 14 2006 this Defendant will not make that mistake again.   

 

The Oklahoma Court of Criminal Appeals further noted that the issues as presented in the original Motion To Dismiss as an appealable issue in it’s own right if preserved in the record in the event of a conviction that is bondable for appeal. 

 

It is obvious that the State is using the unfounded criminal charge as a leverage of coercion in this matter which must also be preserved in the record as it is obvious that the threat of a trial is being used in an effort to destroy the natural bond between this Father and only Son.   

 

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Talents of a loquacious Prosecutor trained to persuade an unsuspecting jury into seeing only his point of view in seeking a conviction, just or not, in disregard of the truth, could possibly prevail resulting in an unjust conviction despite the efforts of this pro-se litigant’s mundane efforts to display the truth as the Prosecutor is an “Authority Figure” putting this pro-se litigant at a significant disadvantage as “A foolish faith in Authority is the worst enemy of Truth.”  Albert Einstein, 1901.  

 

 

Finally, it has been suggested that this father is “too old” to be raising a child.  This “age discrimination” carries with it the common sense that a 69 year old (now 71) mature stoic adult who. Over a ten year period, has provided a home for 16 foster children, desiring a child of his own, would plan for months to create and bring a beautiful child of his own into this world to abuse him in any way.  Suggestion of such is an insult to common sense.

 

 

CLOSING

 

 

For reason and above authority cited and premise considered and as a matter of law and Justice in pursuit of Truth this Defendant humbly and respectfully prays this Honorable Court to sustain his demurer and dismiss the matter here at bar with prejudice.

 

The Defendant now informs this Honorable Court his intention to, should this Court overrule the demurer, move to continue proceedings awaiting Appeal of this Motion to the Oklahoma Court of Criminal Appeals. 

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Respectfully submitted,

 

                                   [signed]            John Schoonover            

                                               RR 1 Box 67 Cleveland Okla. 74020

 

 

Attached:  Two photographs of “Excruciating Pain” described by

Teri Hughes, CASA worker. Taken by Deputy Steve Melton at the

Cleveland Hospital

  11/15/06, it is obvious Elan Lee Montgomery is in no distress

while in his father’s hands. 

 

 

 

 

Judge Sellers

Office of the

Pawnee County

Attorney

 

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[end of filed document]

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Judge Sellers stated he would not rule on this Motion until August 29, 2008.  It is a simple Motion to read and understand; it is clear that the original injury of November 14, 2006, as examined November 15, 2006, consisting of a subtle lucent line with no displacement is minor, to say the least, and not controverted as the result of an accidental fall off the bed.  Even the physicians examining Elan Lee November 15 that did not interview this father have not controverted the minor injury as an accident. 

 

The only physician stating she would rule the injury she examined eight days later as “non-accidental in the absence of an adequate history,” which she did not have and would not accept is Dr. Debbie Lowen who described the injury as significantly more severe as in plural fragments requiring more force than if it were simply “in two” [even if displaced] such as described by all other physicians November 15. 

 

It is clear by the statements of November 15 that conflict with the testimony of Dr. Lowen’s eight day later examination that if Dr. Debbie Lowen testified truthfully, there was a second injury at a later date that occurred while Elan Lee was in the custody of DHS that, in all likelihood, also would have visible bruising that Dr. Debbie Lowen did not see as she did not remove the splints to look under the bandages.  This second injury, Dr. Debbie Lowen testified, would require more force than Elan would develop from the fall that resulted in only the original “subtle lucent line” from the accident the night of November 14. 

 

As Dr. Debbie Lowen was negligent in undressing my son’s arm for a thorough examination that in all probability would have exposed bruising, when there was no bruising as evidenced by the photographs of my son’s arm taken by Deputy Steve Melton November 15 and noted in the records of OSU medical center from their visual examination as well as x-rays that would have shown bruising had it existed, this father will ask, in cross examination, a silly question:  “How does one break the stick into fragments inside a corn dog without damaging the corn or dog?” 

 

 

Is DHS above reproach to ‘hide’ an injury occurring while in their custody and blame it on an innocent victim?  Could A. J. Campbell be a party, or instigator in such a scheme?  A. J. Campbell was powerful enough to persuade Judge Henry to deny my Motion to have Elan’s life threatening head injury of August 30 2007 professionally examined for any internal damage; thus depriving Elan any medical care he needed. 

 

In a separate matter, and I will use our hard-working ranchers as an example, all of who know that the most important meal for an infant calf is the mother’s colostrums.  Any pediatrician will tell you the same applies to humans.  The most important meals for an infant is her mother’s colostrums.   It is well documented that DHS Supervisor A. J. Campbell has directed the callous removal of a new-born from her Mother’s natural food supply contrary to physicians written orders thus depriving an innocent baby from her most important of meals in life.  “In the best interest of the child” has no meaning for Mr. A. J. Campbell.  

 

I feel like a basketball being bounced from one Court to another as each time one Court postpones the other does as well as it seems neither wants to hear the case first.  Hopefully this shame will conclude this year.

 

John Schoonover

 

The first photo is Mikah McCray taking Elan away

 

 

Then an earlier photograph of Elan crawling on his "broken arm."

See the excruciating "pain" in his face?