EL RENO — A judge has rejected murder defendant Joshua Steven Durcho's mental retardation claim, meaning prosecutors still can seek the death penalty at his upcoming trial.
“This Court finds that Mr. Durcho is not mentally retarded,” Canadian County District Judge Gary E. Miller ruled in a two-page order filed Wednesday.
Durcho, 29, is accused of killing his girlfriend and her four young children inside her El Reno apartment in January 2009. His trial is set to begin Sept. 17.
The judge wrote that problems Durcho had with learning while in school could be blamed on his upbringing.
“It appeared to this Court that no one attempted to teach or instill a work ethic with Mr. Durcho, and there appeared to be no effort to instill a value system in the young man,” the judge wrote.
His attorneys claim Durcho is ineligible for the death sentence because of mental retardation.
Defense attorneys can raise their claim again with the jury at trial, should Durcho be convicted of murder.
Jurors would not be able to choose a death sentence as punishment if they decided Durcho was mentally retarded.
The term mental retardation is still found in Oklahoma law even though it has become offensive in society. It is more commonly known now as developmentally or intellectually disabled.
The judge heard testimony over four days in June and one day in July, mostly from experts. The judge also heard from Durcho's mother, stepfather, a cousin, a former girlfriend, an aunt, a half brother and an El Reno Public Schools official.
Defense proves 1 of 3 criteria
The judge ruled defense attorneys failed to prove two of the three criteria necessary for mental retardation.
Under Oklahoma law, the first requirement for a mental retardation finding is that a defendant has an IQ of 70 or below. The second requirement is that a defendant has significant limitations in at least two adaptive skills such as self care, home living or communication.
The third is that the mental difficulties showed up in a defendant's youth.
Durcho scored 72 on two IQ tests given since his arrest. One test was given in 2009 by a psychologist hired by defense attorneys. The second was given in 2011 by a psychologist hired by the prosecution.
The judge agreed that Durcho has an IQ of no more than 70 once the margin of error is applied to the tests.
However, the judge found that defense attorneys did not prove Durcho has sufficient limitations in adaptive functioning and did not prove that any mental retardation manifested itself before Durcho became 18.
The judge noted that all of the testing done on Durcho while he was in school in El Reno indicated that Durcho was learning disabled.
“He was never diagnosed with mental retardation,” the judge wrote.
The judge also noted: “Mr. Durcho's mother testified that she did not assist her son in his educational endeavors by such things as reading to him or assisting him with math. She indicated there was no importance placed on education, that Mr. Durcho was free to progress at whatever rate he chose in his formative educational years. Her primary concern was that he play football. He apparently played football for one or two years.”
The U.S. Supreme Court in 2002 ruled the death penalty could not be imposed on a “mentally retarded criminal” because of the constitutional prohibition against cruel and unusual punishments.
What prosecutors allege
Prosecutors allege Durcho strangled Summer Rust, 25, when she picked up the phone to call police on him. Prosecutors say he had vowed he would never go back to prison. Durcho had been to prison in the past for marijuana possession.
Prosecutors allege he methodically strangled Rust's three daughters, Kirsten Rust, 7, Autumn Rust, 7, and Evynn Garas, 3, and her son, Teagin Rust, 4, to eliminate them as witnesses. Prosecutors also allege he sexually abused Kirsten.
The victims' bodies were found Jan. 12, 2009, in the apartment. The children's bodies had been stacked in a bathtub partially filled with water. Durcho was arrested after a car wreck in Texas.
He admitted to Oklahoma State Bureau of Investigation agents after his arrest that he had a fight with his girlfriend. He told the agents he blacked out with his hands around her neck.