EL RENO — A judge Monday ruled prosecutors can put on evidence at murder defendant Joshua Steven Durcho's upcoming trial that he tried to escape from jail after his arrest.
Durcho, 29, is accused of killing his girlfriend and her four young children inside her El Reno apartment in January 2009.
Prosecutors plan to seek the death penalty at his jury trial in September. Prosecutors contend the June 2010 escape attempt is proof Durcho is a continuing threat to society.
Prosecutors allege Durcho and another murder defendant used sharpened steel rods to chisel away mortar from cell walls at the Canadian County jail. Durcho denies he was involved in any escape plan.
Canadian County District Judge Gary E. Miller ruled against defense attorneys, who wanted the evidence excluded.
The judge also ruled prosecutors can put on evidence at trial that Durcho has shown no remorse. Assistant District Attorney Paul Hesse revealed Monday there is evidence Durcho smoked marijuana shortly after the killings.
Also, Miller is expected to rule later this week whether Durcho has a mental disability that makes Durcho ineligible for the death penalty.
At issue is whether Durcho is mentally retarded, a term still used in Oklahoma law but more commonly known now in society as developmentally or intellectually disabled.
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.
Under Oklahoma law, a murder defendant is ineligible for a death sentence if he has an IQ of 70 or below, plus significant limitations in two or more adaptive skills such as communication and self care.
Also, by law, the mental condition must have been present before the defendant's 18th birthday.
Durcho scored 72 twice on IQ tests given since his arrest in 2009, records show.
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.
They allege he 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.
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.