JUDICIAL Jackasses

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Route 1 Box 67
Cleveland, OK 74020
John@judicialjackasses.com

THE APPEAL

IN THE SUPREME COURT

OF THE

STATE OF

OKLAHOMA

FILED

In Re: The Matter of ] 26 JUNE 2009

Elan Lee Schoonover ]

]

An Appeal by the ] Case No. 107022

Natural Father ]

John E. Schoonover ] from

Pawnee County

] Case # JD 2006-34

Vs. ]

]

The State of

Oklahoma

]

DIRECT APPEAL

Comes now the Natural Father of Elan Lee Montgomery Schoonover, and the Appellant in the matter here at bar, appearing herein pro se, and as such invoking his rights, protections, and broad latitudes afforded a pro se petitioner by Haines v. Kerner, 404 U.S. 519 [1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991] and under and through authority of Faretta v. California, 422 U. S. 806, and hereby humbly presents this Honourable Court with his Appeal of an adverse and wrong decision from the following:

1. [a] The Judgment was from the district Court of

Pawnee County, Oklahoma

[b] Case Number JD – 2006 – 34

2. Date of Judgment, April 1, 2009

3. The Honorable Judge Clifford Smith, presided

4. The case was adjudicated by a six (6) person jury.

5. The trial was a Paternal Rights hearing.

6. The Appellant, John E. Schoonover, USN Ret., was wrongfully stripped of his Paternal Rights to his Natural Son, Elan Lee Montgomery Schoonover.

7. The Appellant offers eight (8) broad grounds for relief

[see brief-in-support]

8. The relief sought from this Honorable Court is the immediate

return of the vested rights of a father, and the immediate return of his son , Elan Lee Schoonover, who was improperly seized.

The Appellant will further pray that the Court find cause to sanction Larry Stuart, District Attorney for

Pawnee County

, for professional misconduct, and to also sanction Patrick Pickerill for professional misconduct [see Brief-in-Support].

9. The Appellant further prays this Honorable Court to order the Pawnee County Office of D.H.S., Mikah McCray, Donna Pace, and Tari Hughes [CASA] investigated for gross misconduct and child endangerment [see Brief-in-Support].

The above is all prayed as a matter of law and as a matter of Justice, and to uphold the peace and dignity of the State of

Oklahoma

and of this

United States of America

It is so prayed.

{ signed }

John Schoonover

John Schoonover, USN Ret.

1 Box 67

Cleveland

Oklahoma

74020

IN THE SUPREME COURT

OF THE

STATE OF

OKLAHOMA

John E. Schoonover ]

]

Appellant ]

]

Vs. ] Case No. 107022

]

The State of

Oklahoma

]

Appellee ]

Brief – In – Support of Direct Appeal

Comes Now the Appellant, John E. Schoonover, USN Ret., appearing herein pro se, and invoking his rights, protections and latitudes afforded as a pro se appellant under authority of Haynes v. Kerner 404 U.S. 519 [1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991] and offers this Honourable Court his Brief–In-Support of his Appeal of a wrongful Judgment from the Pawnee County District Court in the matter of Paternal Rights, in re Elan Lee Schoonover, and raises issues to wit:

HISTORY AND OVERVIEW OF THE MATTER AT BAR

In the matter here at bar, before your Honorable Justices of this Supreme Court of Oklahoma, it will be impossible, and improper to offer the following propositions in error without first giving an overview and history of the matter, how it came to even find itself in a Court of Law, how this Appellant has been branded as unfit for society, and falsely accused of crimes, and more importantly, how the false allegations that led to the improper seizure of his only son, Elan Lee Schoonover,

led to dangerous and harmful circumstances and conditions for the minor child, and, yes, did lead to injuries to the minor child, none of which [injuries] were the fault of this Appellant, as the state has falsely charged.

It is necessary to do this for a number of reasons. First and foremost, it is necessary to give this Honorable Court a lineal history & documents to support the history, so as the TRUTH of the entire matter may be placed in front of a panel of discerning people of and under an oath to seek truth and Justice. This must be done by this Appellant, as the State of

Oklahoma

has fought this Appellant at every opportunity in his attempt to have documented evidence introduced. This Appellant has continued, due to his love for his son, and as a matter of Justice for himself, his son, and so many others somewhat similarly situated, and, your honors, aren’t we taught in our lofty halls of our legal system and halls of legal education that truth is the handmaiden to Justice?

Secondly, it is necessary to present this history, as the State of Oklahoma, and the District Court allowed the hearing at bar to go well beyond the proposed scope of the hearing that brings this matter before you [see Proposition 2]To more accurately present this appeal, it is necessary to give this Honorable Court this history to more accurately show not only the TRUTH, which has never been sought by the State, but the errors involved throughout the proceedings, from the illegal genesis of November 15, 2006, throughout all court proceedings and until this date.

Finally, as this Appellant was required to hear accusations brought before him at the trial court of Pawnee County that he could well have defended by document, evidence, and testimony, but was never put on notice of what he would be required to defend [see Proposition 1].

He must, as a matter of truth, Justice, and to exonerate himself of the libelous and defaming charges, bring an accurate picture before this Honorable Court.

As the State of

Oklahoma

and the Department of Human Services has chosen to make this hearing about an injury, not the “Individual Service Plan” as per scope, the Appellant must offer the following. In effort to present this overview in a laconic and accurate manner, then, this Appellant offers the following history:

The late evening of November 14, 2006, John E. Schoonover was preparing a bottle for his son, Elan Lee Schoonover, age five (5) months, and quite unexpectedly, the child rolled from what Mr. Schoonover believed to have been a safe position, snuggled between two pillows on their bed. Elan cried, as any child would from a fall [falling being the only innate, inborn {not learned} fear]. After Mr. Schoonover came immediately to his child, picked him up and comforted him and did a cursory examination for any injury and found there to be none, Elan had quit crying from the comforting by his father, took his bottle, and both retired for the evening; Elan falling asleep before finishing his meal. The morning of November 15, 2006 Elan awoke with his usual greeting smile . . . and hungry. . .and seemed to favor his right arm. Being the doting father, John felt a trip to the local hospital for a quick check-up by professionals was in store - - better safe than sorry.

Thus began a tale of deceit, dishonesty and false acquisition – none of which, even had the accusations been true, were to have been a part of the trial herein appealed; but as the State of Oklahoma chose to prejudice the jury with lies and half-truths concerning the injury that was the supposed genesis of the armed kidnapping of a child from his father, and as the State presented, and the trial Court allowed the State

to solicit testimony he was not prepared to defend [see Proposition 3], and as the jury was allowed to hear such prejudicial testimony and the Appellant was not allowed to present evidence in the form of original unaltered high quality X-rays and original supporting unaltered medical documents that clearly establish that Elan Lee Schoonover did not sustain the injury that the jury heard about over and over while in custody of his father but, rather after the kidnapping by D.H.S. It is necessary to present this evidence to this Court to allow this Court to understand the false and prejudicial testimony that was the cause of the jury to reach its wrong verdict.

On March 13, 2007, Mr. Schoonover did sign a statement stipulating to being responsible for “the injury” to Elan’s right arm but it must be noted that this stipulation was made before he became aware of the X-rays and other medical documents that made clear that the injury the State had charged occurred after the State [D.H.S.] had wrongfully taken custody of his child.

It is clear, then, your Honors, that since 3-13-07, and even before, the District Attorney had evidence that would have shown the truth, had that been what he was seeking. The plain fact is, the District Attorney either knew, or should have known, that testimony he permitted and even urged was false and perjured. [see Proposition 4] and with this misleading [at best] testimony, and Mr. Schoonover not being allowed to rebut in proper fashion by the trial court [see proposition 6], and counsel’s failure to advocate such issues on behalf of her client, it is not hard to see how the jury, being mislead and misinformed to the facts, could have found as they did.

Make no mistake, this was a trial about an injury, either accidental or otherwise, that has been wrongfully allowed to be laid at the feet of the Appellant. This Court must see this; this court must not allow a

situation not far from the Larry Nifong in Duke North

Carolina

’s continuing to prosecute three LaCross players despite having exculpatory evidence in his possession. This is the case here. Check the evidence herein presented. Check it against the record and trial transcripts herein.

It will be clear that no jury, given the true history, as has been presented above, backed with hard, unquestionable evidence and time line, would have ever taken the minor child from his Natural Father. The fact is, by checking the above, this Honorable Court and your Honorable Justices must agree that there never was and never has been, reason for Mr. Schoonover to ever had his only son so wrongfully taken.

For reasons above, as well as the myriad of judicial errors, looked at unbiasedly, this Father is confident he has been denied Due Process as described by the 5^th Amendment to the U.S. Constitution, “Life, liberty or property.” This father has lost far more than that Due Process; he has lost his life and meaning for life by deception of the State.

From the above this Appellant offers the following Eight Propositions in Error:

Proposition 1:

The Appellant Was Not Advised As To What He Must Be Prepared To Defend: A Violation of Due Process of Law As Guaranteed by the 5^th and 14^th Amendments

Proposition 2:

The Court Abused Its Discretion: Violations of 5^th, 6^th, & 14^th Amendments.

Proposition 3:

The State Induced and the Trial Court Allowed An Evidentiary Harpoon: A Violation of the 5^th & 14^th Amendments [Due Process]

Proposition 4:

The State Induced Perjured Testimony: A Violation of the 5^th & 14^th Amendments

Proposition 5:

Both the State and Child Advocate Expressed Extreme Prejudicial Remarks At Closing: Violations of the 5^th & 14^th Amendments.

Proposition 6:

The Appellant Was Not Allowed To Confront or Rebut his Accusers:

Violations of the 5^th, 6^th, & 14^th Amendments.

Proposition 7:

Counsel Was ineffective: A Violation of the 6^th, 5^th, & 14^th Amendments.

Proposition 8:

Cumulative Trial and Procedural Errors Denies A Fair Hearing: Violations of the 5^th & 14^th Amendments [Due Process].

AN APPEAL FROM THE DISTRICT COURT

PAWNEE COUNTY

Case No. 107022

In Re:

ELAN LEE MONTGOMERY SCHOONOVER

JOHN E. SCHOONOVER

APPELLANT

THE STATE of

OKLAHOMA

Patrick Pickerill

APPELLEES

DISCUSSION & STANDARD OF REVIEW

The basis for any review of a judicial decision on appeal, or in reality the backbone of our entire judicial system is found in the 5^th Amendment to the U.S. Constitution passed generally through to the states by the 14^th Amendment. That is Due Process of Law. “One shall not be stripped of life, liberty, or property without due process of law.”

In reviewing an appeal the Court’s over-riding decision must first be in determining if the appellant received a Fair Trial with a reliable outcome. If the Court has a legitimate basis to believe the appellant did not receive a fair trial, or that due to trial error the outcome was not reliable, then it must be determined by the Court that the appellant did not receive due process, and the decision must be reversed.

Due Process requires that counsel act as a zealous advocate. Without zealous advocacy one can never achieve a fair trial with a reliable outcome. This standard is set by Strickland v. Washington, 466 U.S. 668 [1984].

Finally, and of utmost importance, is the plain error of an appellant not being informed what he must be prepared to defend by either pre-trial ground rules set by the Court and adhered to by all parties throughout the trial, or through discovery. If one is to be put in the docks for one matter, and blindsided by the bringing of another matter, it is clear one can not defend, nor can he even be deemed to have a fair trial with a reliable outcome.

All of the above and more error was the trial held March 30-April 1, 2009 and the following propositions will more than uphold this appellant’s contentions, when looked at with the true documented facts that has and will be brought forth.

PROPOSITION I

The Appellant Was not Advised As To What

He Must Be Prepared To Defend

For one to ever come close to having a fair hearing with a reliable outcome, thus gaining even a semblance of Due Process, the first requirement of our adversary system of law and justice is that one must be advised what he must defend against. If not, there is no way one can be prepared to defend against false allegations, as was the case in the matter here at bar.

In a matter as grave as termination of Parental Rights, the Court must assure that the Parent who is in the dock be given ample notice of what to defend, just as in any criminal or tort claim. While no Information, per se, is filed in such matters as here, it is necessary to bring what the charge is that one must answer in the parental rights issue. In Johnson v. Gibson, 169 F.3d 1239 [10 Cir. 1999], the Circuit Court held that an

Oklahoma

matter “Any information may violate the 6^th Amendment by failing to provide adequate notice of the nature of the accusations against the defendant.” In this matter, Mr. Schoonover is, in fact, a Defendant, especially in light of the way the trial was presented. “A charge [Information] is adequate if it sets forth the elements of the offense charged and puts the defendant on notice of the charges that he must defend.” Johnson v. Gibson, id.

Throughout the proceedings, it is clear that the State and Mr. Schoonover both offered numerous Motions In Limine, and the State itself asking that the hearing in the matter at bar be limited to Mr. Schoonover’s completion, or failure to complete an ISP [Individual Service Plan] as ordered by DHS and the Court, and what, if any, action had been taken by the father to correct the situation that was the supported

genesis of the charge of being an unfit father. These two, and these two matters alone were to be, by agreement and rules set by the Trial Court at various PHCs, the issues on which Mr. Schoonover’s Parental Rights were to have been decided. And in this end, there are the issues the jury was charged with deciding. During the interim, from the very outset, the State, through D.A. Larry Stuart and CASA / DHS, through Patrick Pickerill, brought continuous extraneous charges that were not to be part of the hearing at bar. The Court allowed the continuous prejudicial charges and Mr. Schoonover’s counsel continually failed to object.

The point is, Mr. Schoonover and his counsel, if not the trial Court itself, were caught well off guard, and unprepared to mount a proper defense [which they well could have] against the claim of the minor child having broken his arm due to negligence of this father. They were unprepared due to the fact that the scope of this hearing was to be about only the ISP and means of improvement of the conditions that led to Elan Schoonover being taken from his father. Yet throughout this trial, it became the mantra of the State that Mr. Schoonover broke his child’s arm. Tr. P. 13, lines 5-7 / Exhibits referred to on page 15 state “broken arm” as the reason adjudicated deprived. Tr. Page 68 lines 24 + 25, page 69 line 1. Page 104 line 20. Page 105 lines 17& 18, 21-23. Page 110 lines 14-16. Page 252 lines 18-22 and page 273 lines 23 & 24. Page 261 lines 2-4

The fact is, had Mr. Schoonover been informed to defend this, it is clear he could have well done so by evidence and in fact attempted to do so during his cross examination but was not allowed to enter into evidence the X-rays he held up in open court! See Exhibits B & C

Further, the state brought evidence of a 50 year old incident, that again could have been defended by records and evidence. See Exhibit F.

In essence, this Defendant father was never advised of numerous false allegations he would be called on to defend. The Court failed to protect Mr. Schoonover, as did his own counsel. The jury was allowed to hear false and extremely prejudicial charges with no opportunity for the father to rebut due to his unpreparedness at no fault of his own, or by erroneous Court decisions in allowing evidence to be presented by this Defendant. [See Propositions 2 and 6].

Had the jury been given a true picture of the events, the true time of the child’s arm being broken, it would have found differently. The father was prejudiced beyond relief by such blindsided state action, and the Court sat moot. Indeed, had the charge given the jury of the ISP and improvement of conditions been fairly argued sans the wrongful introduction of the prejudicial and false charges, the jury would never have taken the child from the father.

As Mr. Schoonover was blindsided by the bringing of false charges he was not put on notice to defend, he was never afforded Due Process or fair trial with reliable outcome, and the trial decision must be reversed.

PROPOSITION II

The Trial Court Abused it’s Discretion

In Evidentiary Matters. A Clear denial of

5^th, 6^th, and 14^th Amendments

It is clear law that appellate Court’s review trial Court’s evidentiary decisions for abuse of judicial discretion. See Williams v. State, 22 P.3d 702, 724. This Court has vested interest, jurisdiction and authority to review the various evidentiary decisions made by the trial Court, and this Appellant respectfully and humbly moves this Court to do just that in

light of the evidence the Appellant attempted to introduce but was denied by the Court and has presented this Court as part of this pleading.

[See Exhibits D & E]

When the Court, with agreement of all parties, set the scope of the trial, then allowed one side [the State] to prejudicially move far beyond the set limits, while not allowing the Defendant, your Appellant, to present exculpatory evidence, [see Exhibit 1, a direct violation of Chambers v. Mississippi, 410 U. S. 284 (1973) ] was clearly abuse of the Courts discretion and under Williams v. State, id, this Court clearly has authority and jurisdiction to review all evidentiary decisions of the trial court for error. Upon examination of the record herein presented, following Williams review, it will be clear the trial Court acted unfairly and showed possible bias in the handling of admission of evidence. In Hooker v. State, 887 P.2d 1351, 1366 Fn. 48 our Court’s held “When the way in which the trial judge conducts the trial causes prejudice to the accused, an abuse of discretion must be found.” This is certainly the case here at bar. See also In Re Murchinson This defendant twice referred to Chambers v. Mississippi, [Tr. P. 244 lines 7&8, lines 12&13].with regard to the exculpatory X-rays and was ignored.

For this reason, this Court should reverse the outcome as unreliable.

PROPOSITION III

The State Induced and The Court Allowed

An Evidentiary Harpoon

By allowing the district Attorney to induce, and State witness Tari Hughes to emit, such false and blatantly prejudicial statements without immediate admonishment. [Tr. 148 lines 8-17] As this solicited testimony took place it left the Defendant so badly prejudiced that no repair could have saved Mr. Schoonover from denial of Due Process and a fair trial with a reliable outcome, as a fair trial was scuttled by the harpoon, thus also was any reliable outcome. This solicited testimony alone left this appellant condemned from the damage done by an evidentiary harpoon and a mistrial should have immediately been asked and granted. [reference Proposition 7]

The trial court itself realized its major leaving little doubt of the severity of the damage done [Tr. 148 lines 23-25, 149 lines 1-22] .

Okla.

Stat. 12 §12 -609 [B] [C] [1] and [2].

During direct examination of Tari Hughes, Tr. pp. 148 line 8 to pp. 169 line 9 of which that “yes” answer is the only truth. The website to which Tari Hughes makes reference is www.justice4families.com.

When an evidentiary harpoon is introduced, whether or not solicited by the State, there can be no option but to declare a mistrial. This was not done. This outcome was unfairly derived and must be reversed.

PROPOSITION IV

The State Induced Perjured Testimony

With clear knowledge that a state decision to strip Mr. Schoonover of his rights as natural father and parent of Elan Lee Schoonover relying solely on the agreed scope and limits of the ISP and improvement of conditions [“Substantial improvement or modification in condition of custodial . 7

Parents must be determined by a court prior to a decision”; Baker v. Ranson # 103, 906 decided May 9, 2008, citing Gibbens v. Gibbens, 442 P.2d 482], an unlikely outcome, the State chose to improperly move beyond the agreed and predetermined limits and scope of the trial and make the trial about abuse of Elan Lee Schoonover by his father, and to support such a completely false and unfounded charge, the State attempted to use evidence that Mr. Schoonover, your Appellant, by abuse, willfully and deliberately breaking his son’s arm by improper force.

When the State induced this testimony, it will be clear from the extraneous evidence herein presented this Court [note that this appellant has made every attempt to introduce this same evidence at trial to no avail], that the State induced perjured testimony. Any testimony about the minor child’s arm being broken while in custody of this Appellant was false, and known to be false by those who both gave the testimony and tampered with exculpatory evidence. [See Exhibit F, “Affidavit”].

By a simple cursory look at the facts and evidence introduced to this court, evidence and facts that this Appellant attempted to introduce at trial to defend himself against the false allegations presented the jury that were never to be a part of the trial to begin with [see proposition I], will leave this Court no doubt that the accusations of abuse, was and is false, and any testimony pertaining to such was perjured. Note in the aforementioned exhibit the time-line of the untampered with X-rays and the dates of Exhibit B & C and the tampered X-ray, Exhibit D., “Information for Injury to Minor Child” which was after Elan’s arm was broken but before this accused discovered and brought to light the original radiologist’s report [medical records exhibits] when the original X-rays were at that time acquired by Tari Hughes as the D.A. requested and delivered to the District Attorney’s office where they were secreted until September 10, 2008.

From evidence presented, clearly Tari Hughes and others knew John Schoonover did not have any connection to Elan Schoonover’s arm being broken. From the X-rays and documents that were in the possession of the State, it is further clear that the State knew this fact. Yet despite this, evidence was presented and without question, the jury’s belief that John Schoonover was directly involved with Elan Schoonover’s Broken Arm was the over riding issue on which the jury decided. It was the ever present elephant in the court room. It has been said by an astute counsel, “Once the Bull is in the courtroom, it is impossible to remove the smell.” Once the jury was led to believe, falsely, that Mr. Schoonover was in any way responsible for his child’s broken arm, a belief derived by the perjured testimony, it was impossible for the outcome to have been any different than it was. It was impossible for the jury to have derived at a reliable outcome. It was impossible for the Appellant to receive any form of a fair hearing. Due Process was still born at the first false mention of his child’s broken arm in connection with this Appellant.

In United States v. Agnis, 427 U.S. 97 [1976], the court held that if a verdict is reached through the use of testimony that was known or should have been known by the State to be perjured then the outcome “Is fundamentally unfair, and must be set aside if there is any reasonable likelihood that false testimony could have affected the judgment of the jury.” In the instant matter, with the exculpatory evidence that is now properly before this court, it is clear that if the State was not aware that the placement of blame of this injury that was the false genesis of this entire matter on Mr. Schoonover was false and perjured, it should have been. The same evidence presented here to this Court, Exhibits B was in the possession of the State.

In Alcorla v. Texas, 355 U.S. 28 [1952], the court reversed a decision and

verdict because the Prosecutor elicited testimony which he knew gave the

jury a false impression, stating that the deception could easily have affected the verdict.

U.S.

v. Agurs, supra, the court also assessed that a strict standard of evidentiary testimony, of with holding exculpatory evidence, or use of perjured testimony is necessary not merely because of Prosecutorial Misconduct [which undoubtedly occurred], but more importantly because of the “Corruption of the truth – seeking function of the trial process” [which also undoubtedly occurred].

No question can be held that the introduction of the false testimony concerning the child’s injury was the cause of the “fundamental unfairness” of the verdict.

This Court, as history has shown, must reverse the verdict, and call for investigation of the source of the perjured statements.

For a history of such practice of reversal for such actions as perjured testimony this Appellant could bring a listing of authority from Mooney v. Holohan, 294 U.S. 103 [1935], Milles v. Pate, 386 U.S. [1962], Napue v. Illinois 360 U.S. 264 to Oklahoma’s Hall v. State, 650 P.2d 893 [1982].

This Petitioner further questions the State in withholding exculpatory evidence under Brady v.

Maryland

, 373 U.S. 83 [1963]. In either event, the court must see that deception has always been a part of the State’s game plan. Reference the State pushing the fact that this Appellant Stipulated to Causing The Injury to his child [Tr 213 lines 25, pp 214 lines 1-9] when the State either knew or should have known that was never the case, and allowed this father to grieve for months his believed action of allowing his son to be seriously injured. At the time of the stipulation Mr. Schoonover had never seen or been privy to the November 15, 2006 X-ray and medical report that clearly exonerates him of causing the injury. The Stipulation was itself, achieved by deceit.

PROPOSITION V

Both the State and Child Advocate Expressed Extreme and Unfounded Prejudicial Remarks at Closing

There is no question that the remarks, especially of Patrick Pickerill, at closing arguments were both prejudicial beyond repair, and were in no way based on a foundation introduced during the case in chief. [Tr. pp 261 lines 23-25 continuing pp 262 lines 1-16. pp 263 lines 19 & 20 {abuse}. Pp 264 lines 15 – 25 {false, the ISP was designed to fail}. Pp 265 lines 3-10. Especially lines 6-7. {false, the only one who will suffer any harm is Patrick Pickerill will not get paid for handling the pre-arranged adoption and his only concern is his pocketbook!}

Larry Stuart, Tr. pp 253 lines 10-12, does tell one truth: This Appellant did “stipulate” [see Exhibit I] but that was before learning of the exculpatory medical records proving no injury prior to DHS taking custody of his son. Pp 254 lines 15 & 16, “Child Abuse” where there was none and lines 22-24; Francey Bates course and the DHS “Anger Management course requires that one must confess the accused sin of “Child Abuse” for redemption.

Larry Stuart, pp 275 lines 11-21. Total falsehood as this Appellant did in fact make arrangements with the Department of Veterans Affairs but DHS refused to accept this best total health care system in the world as “not qualified.” Good enough for the protectors of our country but not good enough for Donna Pace.

Both the State through the District Attorney and CASA counsel Pickerill vouched for testimony of state witnesses. When the State’s attorneys vouch for credibility of State’s witnesses it carries an imprimatur of the government and may induce the jury to trust the government’s judgment.

[

U.S. v. Young

, 407

U.S.

l [1985]; Marshall v. Hendricks, 307 F.3d 36, [3 Cir 2002].

The remarks at closing were so prejudicial as to cause a loss of Due Process.

Marshall v. Hendricks

, Beardslee v. Woodford, 358 F.3d 1147 [9 Cir 2004] It is further law that the State should not hold out his opinion of the accused, in this case, the father in the dock. Boyd v. French, 147 F.3d 368 [4 Cir 1998]; Hodge v. Hurley, 426 F.3d 368 [6 Cir 2005].

There is no question that Misconduct was rampant throughout these proceedings, and prejudicial remarks were only one more miscarriage, but one that can not be overlooked.

In the closing arguments, Karla Rogers is the only one abiding by the truth: Pp 265 lines 14 through pp 272 lines 1-13. Karla Rogers tells one potential false-hood on lines 13 & 14. This Honourable Court’s Just Reversal will re-open that door.

PROPOSITION VI

The Appellant Was Not Allowed to Confront or Rebut

His Accusers in any Meaningful Manner

The Right to confront must be meaningful. When false testimony was presented concerning Mr. Schoonover’s character, and especially when testimony was falsely brought concerning the injury to his son’s arm, and this Appellant was standing ready to present evidence to disprove, and was denied this by the trial court, his right to confrontation was virtually stripped.

Maryland

v. Craig, 497

U.S.

836 [1990],

Kentucky

v. Stricker, 482

U.S.

730 [1987] and

U.S.

v. Watson, 76 F.3d 4 [1 Cir. 1990] speak especially

to the confrontation clause serving to “ensure the reliability of the evidence,” and being “designed to promote truth-finding function of a trial” and giving an accused a “full opportunity to probe for truth.”

In the instant matter, when the trial court shut short the truth seeking element of confrontation by not allowing exculpatory documents and X-rays, thus revealing the mountain of lies and deceit, the essence of confrontation was violated.

For such action this Court must see that truth was not an issue with the State or the court, but only with this father, and therefore must see the total denial of Due Process.

PROPOSITION VII

Counsel Was Ineffective

While counsel at times performed to Strickland standards, at times when objections or calls for mistrial were of the utmost need, counsel disappeared.

The standard test for effective counsel has long been Strickland v. Washington, 466 U.S. 668 [1984], which basically states counsel should be seen as effective if it can not be shown that a trial outcome would be different except for ineffective counsel.

While this Appellant does not lay total fault at the feet of counsel, he does believe that counsel failed to properly investigate and failed to timely object, and of utmost importance, failed to ask for mistrial at the evidentiary harpoon elicited by the State.

Counsel then could be seen as ineffective for failure to challenge the mountain of false testimony, as was evidently false by known evidence as here submitted in facsimile. “Facsimile” [Exhibits B & C] as there is only a single set of untampered X-rays from OSU Medical Center {11/15/06} and a single film from St. Francis Hospital {11/21/06} that are not duplicateable by any means known to this Appellate and three computer storage discs, two formats from OSU and format from St. Francis, of the only known untampered X-rays, that this Appellate can not duplicate. This Appellate was simply ordered by the court to “hang on to them” and will as they are the only hard unrebutable evidence that this father is innocent of the offense charged throughout the trial. This father requests to personally bring them to this Court for viewing at any time this Court advises is convenient. They are very high quality and easy to read even in normal lighting.

PROPOSITION VIII

Cumulative Trial and Procedural Errors Denied a Fair Hearing

The past presented history, the documented evidence given this Court in the attached exhibits, the propositions shown above, and the general tainted atmosphere of this entire procedure, taken cumulatively, could be seen in no other light except denying Due Process and this matter must be reversed.

In support of this Appellants claim perjury was deliberate from the genesis see Exhibit H, Hospital staff led by DHS to believe Elan an abused abandoned fatherless waif. Exhibit H, Exhibit J, Radiologists report Mikah McCray denies exists by her perjured testimony 11/21/06 “They haven’t been reviewed yet” [Exhibit K] and based her fabrication of a fracture on a cursory physical examination, Exhibit L, ignoring the reading of the X-rays that prove contrary to the Preliminary report. Exhibit M clearly shows there was no probable cause to kidnap Elan.

CONCLUSION

Elan Lee Schoonover, age five (5) months, and quite unexpectedly, the child rolled from what Mr. Schoonover believed to have been a safe position, snuggled between two pillows on their bed. Elan cried, as any child would from a fall [falling being the only innate, inborn {not learned} fear]. After Mr. Schoonover came immediately to his child, picked him up and comforted him and did a cursory examination for any injury and found there to be none, Elan had quit crying from the comforting by his father, took his bottle, and both retired for the evening; Elan falling asleep before finishing his meal.

The Appellant has brought undisputable evidence that the genesis of this tragedy, [the separation of family; father & son], that is to say the injury to young Schoonover’s arm, has been made the issue constantly before the jury in the trial which this appeal is being taken. He has also shown this court how the improper introduction of such was well beyond the scope of the trial as agreed by both parties and yet the state chose to make the injury the central part of the trial and failed to put this Appellant on notice to defend against allegations of abuse and neglect and it is clear from the evidence of undisputable facts in the form of dated medical documents and dated X-rays that he could have and would have been more than prepared to defend had he been given notice to do so. The fact is this Appellant would have liked the hearing to have been about the injury had the state not moved to limit the trial to the completion of the ordered ISP and ignore the circumstance of the child’s injury.

The facts are plain by the evidence herein. This appellant could have easily defended against being accused of causing the injury to this child

had the court allowed him to present the undisputable evidence: X-rays and other medical documents that clearly shows that there was no fracture of Elan’s arm Nov 15 2006.

This appellant has had to defend against matters he was never put on notice he was to defend. The state brought such allegations as a 50 year old overturned charge that also resulted in some sanity question. The sanity issue could have easily resolved by presentation of his exhibit [the restoration certificate] exhibit herein had he been put of notice.

The fact is this harpoon was first of all beyond scope, secondly prejudicially beyond repair and finally was improper to bring even had there been validity to the subject matter in that the matter was well more than ten years old and the State gave no notice of intent to use [see Oklahoma Statute Title 12 § 609 [B] ; and the matter in question was not admissible due to the fact that the appellant has the document restoring all sanity…and any other matters that were inadmissible due to a finding of innocence.

Oklahoma

Statute 12 § -609 {c} [1] and [2].

From the outset of the trial there was every element of deceit and improper judicial presentation by the State. With the multitude of improper introduction of extraneous matters, blatant evidentiary harpoons, the unfounded prejudicial remarks by DA Stuart and Child Advocate Pickerill. The improper stating of personal opinion by both counsels. In no way can this procedure be seen as being a fair trial with a reliable outcome, as called for under the due process cause of the 5^th Amendment of our U.S. Constitution.

The fact is, from the moment the State began to offer extraneous inculpatory evidence the trial court should have called for an in camera out of the hearing of the jury as to the merits of, validity,

and admissibility of any such statements. See Love v. Johnson 57 F3d 1305.

While it may be noted that a number of the authorities cited herein are from the criminal bar, there was a criminal style prosecution in progress at all times.

All authority herein presented this appellant humbly and with all respect prays this Honorable Court to spread the entire record and exhibits attached, and upon examination will find that the decision herein appealed be ordered reversed, and that the Court order a judicial inquiry of these entire proceedings from November 15 2006 to this date, and from the inquiry, order what action as this court would deem appropriate.

It is so prayed.

{ signed }

John Schoonover

Natural father of his only son Elan Lee Montgomery Schoonover.

I John Schoonover, attest that exact copies have been hand delivered to:

Attorney General of

Oklahoma

Pawnee County District Attorney

Patrick Pickerill, Attorney

www.justice4families.com

********************************************************************************************************

THE STATE, Drew Edmondson had by law 30 days in which to respond to this pleading. He chose not to contest the Appeal. THE CHIEF JUSTICE, Jim Edmondson, gave the Attorney General an additional ten day in which to respond and again, Drew Edmondson chose not to contest the appeal. Therefore:

********************************************************************************************************

MOTION FOR SUMMARY JUDGMENT

8/2/09

IN THE SUPREME COURT

OF THE

STATE OF

OKLAHOMA

Filed

In Re: The Matter of ] August 3 2009

Elan Lee Schoonover ]

] Filed In

Pawnee County

An Appeal by the ] August 5 2009

Natural Father ]

John E. Schoonover ]

] Case No. 107022

Vs. ] from

Pawnee County

] Case # JD 2006-34

The State of

Oklahoma

]

MOTION FOR SUMMARY JUDGMENT

Comes now the Natural Father of Elan Lee Montgomery Schoonover, and the Appellant in the matter here at bar, appearing herein pro se, and as such invoking his rights, protections, and broad latitudes afforded a pro se petitioner by Haines v. Kerner, 404 U.S. 519 [1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991] and under and through authority of Faretta v. California, 422 U. S. 806, and hereby humbly moves this Honorable Court for Summary Judgment in the above styled numbered Appeal pursuant to Title 12 of the Oklahoma Statutes and for reasons and authority to wit; the Appellant herein will be called the Appellant or by name, the Natural Father. The Appellee will be called the Appellee or Respondent or by name.

1. The instant Appeal was filed on June 26, 2009, Case No. 107022 and the Respondents were duly notified on that same date.

2. The Appeal was brought due to a serious breeches of court procedures and failure to provide Due Process to this appellant from a trial in Pawnee County Case # JD 2006-34 decided April 1, 2009.

3. The Appellant filed in a timely manner his Notice of Intent To Appeal with the Pawnee County District Court [trial court].

4. The appellant presented this Honourable Court with his Petition in Error on April 28, 2009, and it was submitted before this court, therefore in a timely manner. The appellant, pursuant to the rules of this Court properly served the Respondents with exact copies of his Petition in Error.

5. Pursuant to Oklahoma Statutes Title 12 and further pursuant to the rules of this Honorable Court the Appellant filed his Brief In Chief in a timely manner and further pursuant to the rules of this Court properly served the respondents with exact copies.

6. To date [August 3, 2009] the Respondents have decided not to ask for any extension and have willfully chosen not to respond to the Brief In Chief in any timely manner, and pursuant to the rules of this Court the time has elapsed for any response from the Respondent.

7. Due to his decision to timely respond the Appellant moves this Honorable Court to both bar future response and to conclude the respondents have acquiesced and stipulated to the claims of the appellant in his Brief In Chief and all evidence and attachments therein.

8. From all evidence improperly omitted that is a part of the record and Brief In Chief with all attachments submitted by John E. Schoonover, USN Ret, this Natural Father of Elan Lee Montgomery Schoonover, it is crystal clear that an improper trial led to an improper decision by the trial jury. Further, from the same submitted record, that pursuant to Oklahoma Statute Title 10, Chapter 70 – Oklahoma Children’s Code § 7003-4.4 – Allegations of Petition not Supported by Evidence:

“If the court finds that the allegations of the petition are not supported by the evidence, the court shall order the petition dismissed and shall order the child discharged from any custody. The child's parents, guardian or other legal custodian shall also be discharged from any restriction or other previous temporary order.”

{SECOND MOTION FOR DISMISSAL filed 12/23/08}

{CJ 2009-79 filed 3/13/09}

CONCLUSION

The Appellant is entitled to the immediate reversal of the trial courts findings, and that as a matter of fact, and as a matter of law, the trial court should have dismissed all allegations brought for certainly this Natural Father of his Natural Son, and the minor child should have, upon introduction of indisputable evidence that there was no injury caused to the minor child by John E. Schoonover, USN Ret, his Natural Father, his Natural Child, Elan Schoonover, should have then and there been returned to his Natural Father. [See Oklahoma Statute Title 10, Chapter 70 – Oklahoma Children’s Code § 7003-4.4 – Allegations of Petition Not Supported by { UNTAMPERED } Evidence].

The Appellant has shown in his Brief In Chief that he is entitled to reversal of the trial court’s decision. He has further shown, both herein and in his Brief In Chief, with all attachments, that he is entitled to dismissal of all allegations and the immediate return of his Natural Son. This by evidence, facts and authority. He has further shown that as a matter of law, the Respondents are by choice willfully beyond time to respond, and that this Honorable Court should hold this as evidence of agreement by the Respondents [nolo contendere] or in the least, bar the respondents from any response and base its conclusions entirely on the Appellant’s pleadings to this Court along with all the attachments, and the record presented this Honourable Court.

Therefore, premises considered, the Appellant John Edward Schoonover, the Natural Father of Elan Lee Schoonover, the minor child, should be granted relief as prayed in this Direct Appeal: that being dismissal of the charge brought by the respondents, the immediate return of his Natural Son Elan to his Natural Father and other relief as this Honorable Court deems.

It is so prayed.

{ signed }

John Schoonover

1 Box 67

Cleveland

Oklahoma

74020

Natural father of his only son Elan Lee Montgomery Schoonover.

I John Schoonover, attest that exact filed copies have been hand delivered to the offices of:

Respondent: Drew Edmondson, Attorney General of

Oklahoma

Pawnee County District Attorney Larry D. Stuart.

Patrick Pickerill, Attorney,

Cleveland Oklahoma

Pawnee Department of Human Services.

{ signed }

John Schoonover

et. alii via U. S. Mail, fax and

www.justice4families.com

www.judicialjackasses.com

[8/2/09]

*******************************************************************************************************

Quite unexpectedly, there was a 'response,' albiet out of time and in violation of Court Rules and the way it was introduced the Clerk of our Supreme Court filed it as coming from the Attorney General, who was the only one allowed by law to respond. It was Larry Stuart 'standing in,' it would appear, with or without Drew Edmondson's permission to act in his stead. Does it require a rebuttal? Factually, No, as it is not admissible. However, put on one's desk as porported to be from "The State" it would be read to its conclusion before one realized it was improper.

A bell once rung can not be unrung. Therefore, one is compelled by this fact to rebut this filing by Larry Stuart:

********************************************************************************************************

IN THE SUPREME COURT

OF THE

STATE OF

OKLAHOMA

Filed

In Re: The Matter of ] August 27 2009

Elan Lee Schoonover ]

]

An Appeal by the ] Case No. 107022

Natural Father ]

John E. Schoonover ] from

Pawnee County

] Case # JD 2006-34

Vs. ]

]

The State of

Oklahoma

]

REBUTTAL TO ANSWER BRIEF

Filed by Larry Stuart, Pawnee District Attorney August 20, 2009

June 26, 2009, this Appeal was filed in this Court, Case No. 107022. The Attorney General, Attorney for the State, was by law given 30 days in which to file an answer brief challenging the issues of error brought by this pro-se litigant. That time limit expired July 25, 2009.

August 3, 2009, this pro-se litigant filed his Motion for Summary Judgment citing the fact that Drew Edmondson, our Attorney General, by his choice of silence in the matter and not contesting, had acquiesced to the facts brought to this court by this pro-se litigant in this appeal.

August 10, 2009, Chief Justice Edmondson of this Honourable Court filed with the Court Clerk an order by the Court to the Appellee, that is, Attorney General Drew Edmondson, was being allowed an additional ten days, to August 20, 2009, by which to respond, or “cause will stand submitted on appellant filings only.”

Again, the Attorney General, Drew Edmondson, the Appellee, remained silent without contest acquiescing to the appellant filing of June 26, 2009 and this appellant’s filing for Summary Judgment August 3, 2009.

This should have concluded the filings by either party.

To confirm this fact, at 1530 hours August 20, 2009, this Appellant asked the Court Clerk if Drew Edmondson had filed an Answer Brief to which the reply was in the affirmative and I could get a copy in Room # 31, the file room. This was done at 1545 and taking it to the canteen area to read it we quickly discovered it was not from the Appellee Drew Edmondson but from Pawnee County District Attorney Larry Stuart acting for the “State,” Drew Edmondson. The instant thought of this Appellant being the Emperor attesting to his own “new clothes” as one can easily see through them to the bare true facts.

At 1555 hours This Appellant went back to the Court Clerk and stated the document she referred to was NOT from the Attorney General. She was very polite when admitting she only read that it was from “the State” and assumed it was from THE State, Drew Edmondson. She asked who this ‘Larry Stuart’ was and a co-worker volunteered, it was: The District Attorney who the Appeal is filed against.

Larry Stuart, the District Attorney of Pawnee County, it would appear, exalted himself as spokesman for Drew Edmondson and submitted his own “Answer Brief” filed August 20, 2009.

Unfortunately, in his desperation, Larry Stuart failed to notify the Attorney General of his self-appointed position. This point alone nullifies Larry Stuart’s Answer Brief but the Bell having been rung can not be un-rung and this forces this pro-se litigant, still invoking his rights, protections, and broad latitudes afforded a pro se petitioner by Haines v. Kerner, 404 U.S. 519 [1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991] into the conundrum: Assume the Justices have ignored the invalid document or assume, as the Court Clerk did, that it was from the Attorney General and read it to the conclusion before discovering Drew Edmondson is never mentioned.

That reminds this Appellant of a statement on an MMPI ordered to be answered truthfully by Judge Mathew D. Henry, of

Pawnee County

, in this matter: “I like Alice in Wonderland by Lewis Carroll.” Yes? No? It can not be answered truthfully for three, to say the least, reasons: 1, There is no book by that title and 2, no “Lewis Carroll” ever existed. It is nature for people to assume too much. Perhaps what prompted Fredrick Nietzsche to write “A foolish faith in authority is the worst enemy of Truth.”

This Appellant learned that fact the hard way and languished for months when he was told November 15, 2006, by DHS’ Mikah McCray that his precious son’s arm had been fractured from the accidental roll off the bed. The truth would not be discovered by this tormented father until the date this natural father went to

OSU Medical Center

to get the “confidential” records because of the following discrepancy:

The names of the physicians on the State’s Witness List were not the names of the physicians that tended to Elan. Why? A different harsher torment began and continues today from that time when the original untampered evidence and documents made it clear my son’s arm was proven in tact with not so much as a bruise.

THE REBUTTAL

District Attorney Larry Stuart’s claim 1: “The Natural Father/Appellant was fully advised concerning the grounds for the Motion to Terminate Parental Rights.”

That is not true. The “STATE’S WITNESS AND EXHIBIT LIST FOR JURY TRIAL ON TERMINATION OF PARENTAL RIGHTS” clearly states Donna Pace will testify concerning the individual service plan agreed to and the issue concerning ‘assisting’ the parent to complete the plan and correct the conditions which caused the child to become deprived.

It also clearly states Francey Bates will testify regarding the parent’s failure to cooperate with the training provided as part of the individual service plan. Also that Dr. Curtis Grundy will testify regarding the parents failure to cooperate and complete the psychological evaluation required by the Individual Service Plan [hereafter referred to by ISP].

Such was all that this Appellant was “fully advised” necessary to defend. [See attachment “A”] and it must be noted that CASA worker Tari Hughes, having nothing to do with the ISP, was not on the witness list and factually has nothing to do with the “Individual Service Plan.”

Nothing about Donna Pace’s “Anger Management” requirement as the psychologist referred to would not agree with Donna Pace in that after the first two sessions he, Dr. David McCullough, disagreed that such course was necessary and that it was a waste of time and money that could best be saved for Elan.

DR GRUNDY

Dr. Grundy testified, Tr 21 lines 7-12, “six hours on it with him on November 2^nd, 2007. Several hours involved in a clinical interview. I also administered an intelligence test and then I had him complete a personality test to look at symptoms and whether or not there’s mental illness present and that test was called a Minnesota Multiphasic Personality Inventory, second edition.”

Tr. 23 lines 4-6, “[I] told him that I knew that there was a prior period of treatment in the 1960s {mid 1960-1961} where he was treated at

Eastern State

hospital.” Dr. Grundy had been told a falsehood by Donna Pace he believed true on foolish blind faith alone. So had the jury. The damage had been done. John Schoonover was, in the juror’s eyes, an ex-mental patient having been committed to a State Insane Asylum for treatment! This Appellant had not been prepared to bring forth the documents proving there was pre-trial confinement but no treatment as there was no “Commitment as a patient” to the facility for such. Observation only. “Commitment for treatment” was merely assumed and expounded on as fact and the jury believed it. It did not matter that the issue was in fact totally moot and irrelevant even if true as it was a year short of half century ago! The jury could not be confused with facts but were definitely dazzled with irrelevant bull shit!

Effective counsel may have secured a mistrial with the ringing of that bell.

Dr. Grundy further testified, to the question Tr. 24 lines 6-8, “Did he complete that {MMPI} test?” “Well, in my opinion and from a professional standpoint, no, he did not.” And on Tr 24 lines 14-15-19,

“Although he kept a narrative on items that he couldn’t respond yes or no to and he wrote out hand-written notes as to what his thoughts were, what his actual response was on that question. And that’s not, unfortunately, that’s not a scoreable response because it needs to be true or false.”

One example, that this Appellant explained in open court was, and the MMPI is 567 statements, not questions, is, “I throw things when I drink too much. T F.” Judge Mathew D. Henry ordered that I be thorough and honest. To be thorough and answer, I am either a docile alcoholic or a violent alcoholic. To be honest, it can not be answered by this Appellant as this Appellant does not drink. To comply with Judge Henry’s order this statement was answered both thoroughly and honestly: “I do not drink.”

This Appellant, by Dr. Grundy’s testimony, did in fact answer truthfully ALL of the statements on the MMPI. It is no fault of this Appellant that Dr. Grundy does not have the knowledge to interpret the answers given without a machine to do it for him. The MMPI, as this Appellant learned at Idaho State University prior to obtaining his Idaho Child Care licenses, originated a year before this Appellant was born and was designed to be read by a machine with inconclusive results interpretable pro/con at the discretion of the interpreter.

Note: The composers of the MMPI were not knowledgeable concerning “Alice In Wonderland” [Disney] and as this Appellant had not read the book referred to could not answer as to like or dislike. Having since purchased and read the book Alice’s Adventures in Wonderland AND Through the Looking Glass this Appellant still would not dare to answer “like” or “dislike” because of the ambiguity of the interpretation of the machine’s response:

The Appellant likes children’s stories about opium smoking caterpillars blowing second hand smoke into little girl’s faces and a corrupt judicial system that declares: “Evidence? We don’t need evidence. Sentence first, evidence later. Off with his head.” - - - OR this Appellant does not like the most famous children’s book of all time so how can he relate to children? Damned if do, damned if don’t. The MMPI is designed to succeed or fail at the discretion of the interpreter. It is useless when applied to anyone with a high degree of intelligence.

Dr. Grundy also testified as to this Appellant’s intelligence: See pages 27, lines 17-25 and 28, lines 1-20. Though not asked for, this Appellant could not be more complimented than to be placed by Dr. Grundy in the top 9%. Tr 27 lines a8 & 19, “I have never given the test to an individual who is bright and intelligent as Mr. Schoonover.”

An intelligence and knowledge that Elan Lee Montgomery Schoonover is being deprived of because it is more profitable for his attorney, Patrick Pickerill, to favor his already fat pocket book by looking out for his own interests; that being, he is an ADOPTION attorney and there is no financial benefit if he places Elan’s Constitutional Rights first, to be with his Natural wise Father to glean from his Father as did the many troubled foster children did when his Father was licensed in the State of Idaho over a decade to help other’s children with their problems. Attorney Patrick Pickerill most definitely places his own financial gain as a much higher priority above the genuine natural love, health, education, welfare and security that Elan Lee Schoonover is presently being deprived of.

Finally, Dr. Grundy did confirm what should have been the only answer required for the satisfaction of this Court: Tr 39 lines 13-20, “did any of the tests reveal that he would not be capable of caring for a child?” “The intelligence test would not indicate problems in that and that is the only test that I have complete.” “Okay. In fact, the high score that he received would indicate that he would understand the nature and the needs of a young child?” “It should, Yes.” Nothing to indicate this Appellant would be a “bad dad.”

Patrick Pickerill resurrected the examination as a psychiatric examination given to “crazy” people; intelligent people being insane, injecting treatment that did not exist for a condition that did not exist, possible for one suffering schizophrenia being intelligent and superfluous speculating to successfully instill in the minds of the jurors by inference a ‘Hannibal Lector’ personality; the technique being taught in Daniel Reisberg’s classic textbook COGNITION, Exploring the Science of the Mind to show how easy it is for an unscrupulous authority figure to cause people to believe something that does not exist. It permeates his cross examination of Dr. Grundy. Tr. page 29 starting with line 24 through page 35.

Patrick Pickerill is also intelligent. He has read the exploits of Ernesto [Che] Quavera and used his greatest strategy: “If there isn’t a problem that needs fixing, create one.” He must “cover up” the fact that the Condition for Donna Pace’s claim of a Deprived Child, Elan’s broken arm, was never broken.” The only “Condition” was: Elan unexpectedly rolled over a pillow and off the bed. To correct that condition a baby bed was bought the afternoon of the 15^th so that it would not happen again. Nullifying the necessity to spend thousands of dollars on a “treatment plan” that is designed to fail and that corrects nothing.

District Attorney Larry Stuart’s claim 2: “The Trial Court Did Not Abuse Its Discretion Regarding The Admission of Evidence.”

Larry Stuart’s opening statement contains nothing that would indicate Tari Hughes would be called as a witness for any reason as she was not on the witness list and has nothing to do with the reasons for “termination” as Larry Stuart explains them to the jury. He does state this Appellant’s having “failed to contribute to the support of the child in substantial compliance” . . . that was later proved false by Amelia Casebolt’s testimony and that issue ruled moot. The only pertinent statement alleged to defend is, Tr. 7 lines 19-23, “that the child has been adjudicated to be a deprived child and that there was provisions made for Mr. Schoonover to correct those conditions that caused that child to be deprived. That he’s failed to do so.”

The only “Condition” was: Elan unexpectedly rolled over a pillow and off the bed. To correct that condition a baby bed was bought the afternoon of the 15^th so that it would not happen again. To date NO ONE will explain to this simpleton how thousands of dollars spent on a psychological evaluation; child parenting classes, both of which were more than thoroughly completed prior to this Appellant having been granted a decade of child care licenses by the State of Idaho, [Attachment B] and Anger Management classes to prevent more abuse when there was never any abuse at any time to begin with and when Nancy Brook, a nanny for former Governor David Hall attended these “anger” classes as a witness to hear Dr. David McCullough state, more than once, “There is no need for these classes; the X-rays clearly show Elan’s arm was not broken and you are the most stoic person I have ever met,”

this Appellant would refer to the fact that the test, [46 P. 3d 1292] “is not whether [the parent] completed the plan but whether [the parent] corrected the conditions which led to the adjudication."

[In the matter of J.M. 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120

In re A.G and E.G. 2000 OK CIV APP 12, ¶ 6, 996 P.2d 494, 497]

Even when Larry Stuart was asked, TR 226 lines 5 & 5, “Would you explain to me how the service plan will be correcting the conditions?” Larry Stuart failed to answer.

Tr 246 lines 17 – 20, “ Overrule the directed verdict with respect to the failure to correct the conditions that led to the child be adjudicated deprived therefore will submit to the jury only that allegation as a basis for termination.

John Schoonover was not allowed to introduce the exculpatory X-rays.

THE CONDITION WAS CORRECTED WITH THE PURCHASE OF A QUALITY BABY BED SO ELAN WOULD NOT AGAIN BE GIVEN THE CHANCE TO ROLL OFF HIS FATHER’S BED.

District Attorney Larry Stuart’s claim 5: “Neither the State’s attorney nor the child’s attorney made closing remarks which were unfounded or unfairly prejudicial to the appellant”

TR 252 lines 18-21: “It caused a spiral fracture to his arm. It caused a fracture which, you know, you heard some opinion from, that were cited by doctors that it’s a fracture that’s not normally associated by a fall by a child. The child couldn’t do it by himself. But, in this matter, he did stipulate that at least that happened.” No evidence has ever been presented that Elan’s arm was broken. Evidence was not allowed to be introduced to prove it wasn’t.

This Appellant did stipulate to the ISP stating “fracture” before discovery of the radiologist report which was long before District Attorney David Robertson released to this Appellant the actual original November 15, 2006 untampered X-rays that had been secreted in the District Attorney’s office from near genesis to September 10, 2008.

TR 254 lines 15-16, Larry Stuart’s demeaning comments about Birthright: “Not a parenting class to deal with a parent who has been so neglectful that it results in child abuse.” First, our Attorney General wrote concerning H.H. in July, 2007, that a single isolated accidental injury is not “child abuse” and second, Birthright is accredited by courts across the nation and gives classes ordered by courts to parents of all ages of children. Birthright recommends a series of informative books titled “Parenting With Love and Logic” that this Appellant had purchased [from B&N.com] and absorbed and they include techniques similar to and in addition to those taught at Idaho State University prior to obtaining child care licensing. The quality of content of which puts Dr. Spock to shame. Attachment C [letter from Birthright].

TR 254 lines 22-24: “They started with compassion work shop because that’s the one that deals with parents who are guilty of abuse.”

Unfounded and extremely prejudicial.

TR 260 lines 19-21 “do you believe he ever accepted responsibility for what happened to the child and they said no. It wasn’t his fault.” Responsibility for the fall, yes, but responsibility for the fracture, no, as the untampered X-rays show there was no broken arm until after DHS took Elan into custody.

Patrick Pickerill, TR page 261 23-25, through page 262 lines 1-16. Refers to this appellant as “evil” ten times, verifying his opinion twice, and once, “wicked.” “[Elan] will die in the presence of John Schoonover.” A ludicrous prognostication.

Patrick Pickerill also relies on the Malignant Malleus Maleficarum Manifesto that John has “confessed” on the ISP. . . to breaking his son’s arm.

Patrick Pickerill stated, TR 264 lines 25 through 265 lines 1 & 2, “He was represented by a lawyer the whole time who told him exactly what the deal was [sign the confession and do the ISP, make DHS look good]. Mr. Schoonover chose not to do that.” Mr. Schoonover elected not to be complaisant to corruption!

Patrick Pickerill, TR 265 lines 6 & 7, “My client will suffer severe harm or die if he’s ever returned to Mr. Schoonover.” More ludicrous prognostication. Totally untrue and without any foundation, even ‘confessed witch’ Esmeralda did not have the ability to tell fortunes.

District Attorney Larry Stuart’s claim 6: Appellant was provided his full constitutional right to confront the witnesses in this matter.

This Appellant wrote one question for his attorney to ask States witness Tari Hughes: “Have you been accused of tampering with evidence in this matter?” Not ‘lead up to it’ as she did thus giving the prosecutor warning of what was coming. Larry Stuart asked for the bench conference, that excluded this Appellant after which Karla Rogers advised this Appellant that he was not allowed to ask that question because a “yes” answer would open a Pandora’s box.

CONCLUSION

In the Hakim brothers’ rendition of Victor Hugo’s classic Esmeralda was accused of being a witch and all she had to do was to confess to God and the torture would stop. She “confessed” and the torture stopped . . . and she was sentenced to hanging for being a witch.

Oklahoma

is second in the nation for DHS taking children from their parents. That can only mean that

Oklahoma

is either home to the second most abusive parents in the nation or

Oklahoma

’s DHS is second only to

Nebraska

in exploiting children.

“John Schoonover continues to be uncooperative.” All John Schoonover has to do is yield to the demands of DHS: Agree with them totally and join the ranks of ‘other’ child abusers to be on ‘parole’ for the next 15 years to Elan’s 18^th birthday. DHS will ‘look good’ for reforming another degenerate child abuser! One day Elan will ask, “Daddy, how could you be so mad at me that you would break my arm when I was a baby?” “I didn’t, son.” “It shows in the records that you confessed.” “I had to, son.” “Wasn’t that wrong?” “It was the coward’s way out.”

“DO THE ISP AND YOU WILL GET YOUR DAUGHTER BACK!”

This Appellant and his children have suffered enough for a single minor unanticipatable accidental roll off the bed that could not happen again. The superficial symptoms of Elan favoring his right arm the following morning indicated to this overly cautious father that something might be wrong internally. The first suspicion would be a sprain; possible but highly improbable, humerus strain resulting in a temporary “subtle lucent line.” Mikah McCray said, “Could he have a fracture?” Well, possibly. Lets take Elan from his father under that pretense.

This Appellant stipulated to the ISP stating the arm broken by leaving the child unattended while getting his bottle. That was before his discovery of the secreted documents from OSU “For The Protection Of The Child” that had so much false information by DHS’ Mikah McCray and the Radiologist Report of no fractures. The X-rays themselves were in the possession of The District Attorney. Long before September 10, 2008 when Assistant District Attorney David Robertson handed the original untampered X-rays to this Appellant. This Appellant stated, and printed as exhibits images of two of those X-rays that clearly shows no fracture. This Appellant has now filed with the clerk of this Court a third unduplicatable original X-ray from that same series that was probably overlooked as not important as its focus is the rib cage which shows there nothing wrong with his rib cage as that was the purpose of that particular X-ray. However, to create this X-ray an attendant had to hold Elan’s arms away from his trunk . . . and both left and right humerus are clearly visible from different angles than the two that focus on the right humerus. There was no fracture when these X-rays were created November 15, 2006.

Assuming arguendo that Elan’s arm was actually broken when alleged, it would have still been because of a one time unanticipatable accident and Drew Edmondson ruled in July 2007 in the matter of Howard Hendrick’s son Hudson, when Hudson was badly burned from mixing matches with gasoline while cleaning up brush July 4, that a one time isolated accident, even when resulting in such injury as Hudson suffered, is not cause for DHS involvement.

Are there two sets of rules? Is it ok for the elite to have an accident and not have their children taken but not a commoner? Is “Equal Protection Under The Law” no longer applicable? And when this Appellant learned of the many “accidents” Elan suffered while in DHS custody, falling head first on concrete in a play area, suturing required from a fall on broken glass in the home, bruises on face from walking backwards and tripping and falling into a coffee table, and a laceration diagonally through his left eyebrow [not allowed to visit until it healed] and asks supervisor A.J. Campbell for accounting and gets the response: “Accidents happen and we’ve had him longer than you have.” Is not acceptable.

Little Elan was not deprived. But Little Elan is being deprived now and has been since November 15, 2006. As is his sister. Deprived of their right to be with and receive love from their parent that loves them. Accidents do happen. This Appellant sought expert opinion/advise when his son simply favored his right arm the morning after he rolled off his father’s bed. DHS, however, could not be persuaded by this Appellant to have his son examined after his head first fall on concrete in August of 2007! Any damage done by that potentially lethal fall was not wanted to be discovered. Another “double standard” of DHS. Something is wrong.

Finally, though this Father has sought it, the truth may never be known. Was there a broken arm at all or not? Elan’s entry into OSU Medical Center “smiling and alert,” as an example, and the photographs, [Attachment D], taken ten days after the X-rays of Elan Schoonover crawling and holding a bottle. Was this a miracle healing or was there nothing to heal?

Are we looking for Justice and if we are, aren’t we taught that truth is the handmaiden of Justice? The untampered X-rays are irrefutable. Larry Stuart’s Attachment “A”, page 5, center right, “No Evidence of Abuse/Neglect” Larry Stuart’s Attachment “B”, dated four months after the fact, after this Appellant discovered the untampered original, is his ‘Tari Hughes’ attempt to alter original evidence to fit the accusation. Why did Pawnee County District Attorney Larry Stuart hide the exculpatory X-rays in his office for over eighteen months?

Pursuant to Oklahoma Statute Title 10, Chapter 70 – Oklahoma Children’s Code § 7003-4.4 – Allegations of Petition not Supported by Evidence:

{SECOND MOTION FOR DISMISSAL filed 12/23/08}

{CJ 2009-79 filed 3/13/09}

{ MOTION FOR SUMMARY JUDGMENT filed August 3, 2009 }

It is prayed of this Honourable Court that as there was no foundation for the composition of any ISP and there is no evidence to suggest that this 72 year educated retired citizen would not be a beneficial asset to his offspring that they be united with their Father as God intended. Our State and Federal Constitutions mandates that they have that right.

Respectfully Submitted,

{signed}

John Schoonover U.S.N. Ret.

RR 1 Box 67 Cleveland Oklahoma 74020

I John Schoonover, attest that exact filed copies have been hand delivered to the offices of:

Respondent: Drew Edmondson, Attorney General of Oklahoma

Pawnee County District Attorney Larry D. Stuart.

Patrick Pickerill, Attorney,

Cleveland Oklahoma .

Pawnee Department of Human Services.

{signed}

John Schoonover

et. alii via U. S. Mail, fax and

www.justice4families.com

www.judicialjackasses.com

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Route 1 Box 67
Cleveland, OK 74020
John@judicialjackasses.com