A Delaware County father accused of killing his 13-year-old son has been charged with first degree murder, according to information released late Tuesday, April 10 by District Attorney Kenny Wright.

Tony Wayne Rutherford, who is free on $100,000 bail, appeared in Delaware County District Court on Wednesday, April 11, with his attorney Winston H. Conner II.  He was given a return date for 9:30 a.m., on Tuesday, May 29.

About the charges

Rutherford was taken into custody on Saturday, April 7, on a murder complaint in connection with the shooting, involving his son, Kyle Anthony McDowell Rutherford.

In documents filed with the Delaware County Court, on Tuesday, Wright said Rutherford “unlawfully and with malice aforethought” caused the death of Kyle Anthony McDowell Rutherford “with a firearm and inflicting mortal wounds” from which Kyle Anthony McDowell Rutherford died.

Wright said Rutherford's alleged actions at the time of the incident show that he "intended to kill whoever was driving the truck."

"That it turned out to be his son, is just tragic," Wright said. "But it doesn't make it any less of a crime."

About the incident

According to the probable cause affidavit filed by Dale Fine an investigator with the Oklahoma State Bureau of Investigations, the incident took place at approximately 1:43 a.m., near Rutherford’s home on East 420 Road, Jay.

Initially, Fine's affidavit states, Misty McDowell reported her husband, had accidentally shot her son in the head with an AR-15 while he was trying to sneak out of the house.

McDowell told dispatchers Rutherford thought her juvenile son was a burglar.

Fine's affidavit states when law enforcement officials arrived on the scene, they discovered the shooting had taken place in a roadway, approximately one mile from the family’s residence on 420 Road.

Fine stated officers found McDowell and Rutherford attempting to perform CPR on Kyle Anthony McDowell Rutherford outside a grey Dodge pickup truck. The truck appeared to have crashed through a fence into a field and was blocked by another vehicle, a 2010 Ford F-250.

Fine said when officers made contact with Rutherford, he refused to speak to them, requesting an attorney be present before questioning.

The investigation, Fine said, developed information that Rutherford was driving the F-250 chasing the Dodge pickup being driven by an unknown driver. During the chase Rutherford was allegedly firing at the Dodge with a firearm.

Fine said Rutherford later determined Kyle Anthony McDowell Rutherford was driving the the other vehicle. The 13-year-old was pronounced dead at the scene.

Rutherford was taken into custody and booked into the Delaware County Jail on a murder complaint.

Connor declined requests in person and by text for further comments about his client as of press time.

Move to disqualify Wright

In a motion filed in Delaware County Court on Wednesday, April 11, Tony Rutherford, along with his counsel Winston H. Connor II and Joshua W. Brewer, to have Delaware/Ottawa County District Attorney Kenny Wright be disqualified from his case.

The multi-page motion, with accompanying brief, contains information related to the civil suit Connor filed in September 2017, charging Wright committed libel, libel per se and slander, in releasing copies of an audio conversation between Connor and Slint Tate, a prisoner within the Oklahoma Correctional System.

Connor wrote in his suit Wright "knowingly and maliciously" committed acts "of slander and libel" during his release of the wiretaps to members of the media. Connor requests the lawsuit be decided by a jury trial.

In the motion, through his attorneys, Rutherford alleges Wright made several serious ethical violations against Connor during the release of information in August 2017.

The motion states "Wright exceeded all bounds of decency and of the law when he disseminated such false and malicious statements against Connor; thereby demonstrating the absolute disdain in which he holds Connor and further demonstrating his inability to be objective or fair in his dealings with Connor, which includes his dealings with Connor involving criminal cases in which Connor represents the defendant."

In the motion, Rutherford asked to have "all the safeguards that are implicated within his Fourteenth Amendment Constitutional Rights of Due Process without such right being abridged as a result of Wright's obvious inability to conduct himself in a fair and appropriate manner in his dealings with Connor."

The motion further states Rutherford's "constitutional right to council of his choosing exceeds any allegation of rights balanced against it by Kenny Wright."

In a brief supporting Rutherford's motion, Connor said his client is "entitled to his council of choice" due to his sixth amendment rights."

"At this time, the Defendant seeks only to disqualify the District Attorney Kenny Wright and not his entire office, but believes there should be a 'wall' leaving Wright out of said case entirely," the brief states.

"It is essential that the issue of the conflict and ensuring disqualification of Kenny Wright be dealt with at the inception of the case."

The brief goes on to state Wright should "recuse himself from any further prosecutions involving Defense Attorney Connor in an effort to fulfill his mandated role as a minster of justice."

The brief further asks the court disqualify Wright from participating in the prosecution of the Rutherford case, and that there be a "Chinese wall" separating Wright from this case and from any and all cases from which Connor is defending the accused.

Wright declined to comment on the case, saying he would address the issue in court. 

Connor declined requests in person and by text for further comments about the motion.