Kevin Dale Etherington
(PCSD file photo)
By Patti Weaver
(Stillwater, Okla.) — A special prosecutor is seeking to postpone the jury trial from November to next spring of former Payne and Logan County First Assistant District Attorney Kevin Etherington on charges of possessing child pornography and illegally taking photos at the swimming pool of an apartment complex in Stillwater where he was living in 2022.
In a motion for continuance filed in Payne County District Court on July 17, Tulsa County Assistant District Attorney Amy Dickens asked Pottawatomie County District Judge John G. Canavan Jr., who was assigned to hear the case, to reschedule Etherington’s trial in Stillwater due to her medical issues and homicide trial schedule in Tulsa.
The special prosecutor wrote that she would be “on medical leave beginning July 22, 2024, until at earliest, Sept. 3, 2024, due to medically necessary wrist surgery.” After surgery, she anticipated “several weeks of physical therapy being necessary prior to being able to fully perform essential functions of trial preparation.”
“In addition to the medical issues detailed above, this prosecutor has two in-custody homicide trials set the weeks of Oct. 21, 2024, and Nov. 4, 2024, in Tulsa County, which due to the in-custody status of those defendants, the state anticipates being held as scheduled.
“The state does not anticipate being able to conduct the jury trial in this (Payne County) case the week of Nov. 12, 2024, in light of this prosecutor’s anticipated medical leave, recovery, and the in-custody homicide trials that this prosecutor anticipates needing to prepare for immediately upon returning from medical leave and while still in therapy and recovering following surgery.
“At the last court setting for this case, the court informed the parties that should additional time be necessary to prepare for trial, the court would be agreeable to granting it, and the state thus respectfully requests that the jury trial in this (Payne County) case be continued to the spring of 2025.
“Counsel for defendant (Etherington) has been informed of the state’s request for a continuance and informed this prosecutor that they will object to a continuance unless the state agrees to modify defendant’s bond conditions to remove his GPS and allow him to move out of state.”
According to Payne County court records, the Pottawatomie County district judge specially appointed to preside over the case in Stillwater has not yet ruled on whether Etherington’s trial will be delayed to the spring.
However, in May the judge ruled that Etherington had failed to comply with his orders “regarding adherence to the conditions of bond previously set,” and that he “shall remain on an ankle monitor/GPS device.” The judge further ruled that Etherington would continue a 1,000 feet restriction from all schools, public malls and public parks, as well as return to his daily curfew restrictions of 7 pm to 6 am.
“The defendant may not drive alone unless it is strictly to and from required meetings with the ankle monitoring/GPS device service provider and/or the court monitoring service provider. All previous bond conditions of the court shall remain in full force and effect to include the defendant shall not have access to nor be in possession of any device which has access to the internet. The defendant shall not have access to any minor child under the age of 18 years.”
In April the judge had authorized Etherington to attend his daughter’s wedding in Colorado “with requirements that he provide to the state of Oklahoma details as to the date, time and location of the wedding, as well as where he would be staying and for how long. The defendant was required to continue wearing his ankle monitor as well as comply with the previous conditions set,”
according to a motion to revoke or increase bond filed by Tulsa County District Attorney Stephen Kunzweiler, whose office was specially assigned to prosecute Etherington’s case in Payne County.
“Incredibly, the location provided by defense counsel for where the defendant would be staying during the April 4-7, 2024, timeframe was directly across from a high school, and clearly in violation of the 1,000-foot prohibition from access to a school condition of bond. Even more incredible is that the defendant’s ankle monitor charger began to have difficulties – right at the time of his scheduled stay in Colorado. The state of Oklahoma has zero confidence in the defendant’s ability to comply with orders of this court,” the Tulsa County DA added.
In response to that motion, defense attorney Michael S. Johnson of Oklahoma City wrote, “Defendant was unaware that he was staying close to a high school. As Mr. Etherington is not permitted to have access to the internet, he was unable to investigate the surrounding layout of a city he is unfamiliar with. Thankfully, the court permitted Mr. Etherington to attend, and he was able to see his daughter get married.
“Mr. Etherington arrived late Thursday night and was unaware of his location. When school was in session on Friday, Mr. Etherington spent all day fixing his ankle monitor and was not near, nor did he have any interaction with children. On Saturday, Mr. Etherington was with family and taking part in all the wedding festivities. On Sunday, Mr. Etherington left and made the drive back home to Oklahoma.
“While it was a technical violation, there was no malicious or ill-intent on the defendant to purposely violate the conditions. It simply was a mere accident in which Mr. Etherington took the necessary steps to remedy the situation in the best way he knew how, given the limited resources he had to work with.
“Mr. Etherington is not a threat or danger to society. He has always shown up to court and does not pose a flight risk. Mr. Etherington is unable to obtain meaningful employment and cannot afford to spend $350 a month on the GPS monitoring device,” his lawyer added in a motion to remove his ankle monitor that was denied by the judge.
Etherington, 54, who had been with the district attorney’s office here for eight years, prosecuted homicides in Payne and Logan counties until his arrest on Nov. 28, 2022, when he was fired by District Attorney Laura Austin Thomas, who expressed devastation in a news release that an attorney on her staff was arrested by the Oklahoma State Bureau of Investigation Internet Crimes Against Children Unit for possession of child pornography. Etherington was jailed in the Moss Detention Center in Tulsa on $500,000 bail until it was reduced to $200,000 in May of 2023, when he was released on bond with multiple conditions.
According to an affidavit by OSBI Lt. Nicholas Rizzi, on July 26, 2022, Goggle submitted a cyber tip to the National Center for Missing and Exploited Children regarding 57 image files that depicted suspected child sexual abuse material.
“The suspect listed in the cyber tip was Kevin Etherington,” the affidavit alleged. “The report indicated that AT&T U-verse was the Internet Service Provider, and the user was located in or around Stillwater, Oklahoma,” the affidavit alleged.
A search warrant was sent to Google for additional content from a Google account, the affidavit said. “A review of that data revealed that the subscriber was Kevin Etherington,” the affidavit alleged.
Lt. Rizzi “located 153 video and picture files that contained child sexual abuse material. A copy of Kevin Etherington’s 2019 and 2020 tax return was located within the Google drive account,” the affidavit alleged.
Following a preliminary hearing on May 4, 2023, Pottawatomie County Special District Judge Emily Mueller found that there was sufficient evidence to order Etherington to stand trial on child pornography charges and an additional count accusing him of being a peeping Tom, court records show.
