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.