EL RENO — The murder trial for a man accused of five deaths was delayed to next year after his attorneys raised the possibility he is mentally retarded.
Joshua Steven Durcho, 28, faces trial on five counts of first-degree murder. He was charged after his girlfriend and her four young children were found dead in their El Reno apartment in January 2009.
Jurors would not be able to consider the death penalty as punishment if defense attorneys can prove mental retardation.
The next hearing in the case is set for Wednesday. Last month, Canadian County District Judge Gary E. Miller reset the start of the jury trial from October to Feb. 6.
Prosecutors allege Durcho strangled Summer Rust, 25, because she threatened to call police on him and he vowed he would never go back to prison.
They allege he strangled her three daughters, Kirsten Rust, 7, Autumn Rust, 7, and Evynn Garas, 3, and her son, Teagin Rust, 4, to eliminate them as witnesses.
Durcho has spent time in prison for marijuana possession. At the time of the deaths, he had warrants out for his arrest in a
His defense attorneys told the judge in July that Durcho had a 72 on an IQ test administered by a psychologist. The attorneys told the judge the psychologist recommended Durcho get a medical scan because of a possible organic brain injury.
The attorneys said their next step is to have a nationally recognized expert assess Durcho.
“Based upon continuing investigation, present counsel have a good-faith belief that Mr. Durcho falls within that class of persons who, by virtue of mental retardation, are not eligible for the death penalty regardless of the circumstances of the charged offense,” his attorneys told the judge.
The attorneys told the judge they have records showing Durcho was in special education classes before he dropped out of school after the eighth grade. They also told the judge relatives and acquaintances indicate Durcho had low mental functioning as a boy.
In Oklahoma, a murder defendant is considered to be mentally retarded if his IQ is 70 or less and he also has “significant limitations in adaptive functioning.” The onset of the mental retardation must have been manifested before the defendant's 18th birthday.
It is different from being found insane. That is when a defendant is acquitted because he did not know right from wrong at the time of the crime.
It also is different from being found mentally
The judge delayed the trial so defense attorneys can complete testing.
Still to be decided is whether Durcho is entitled to a separate jury trial on the mental retardation