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.