EL RENO — An Oklahoma psychologist who has evaluated 1,500 to 2,000 criminal defendants testified Monday for the prosecution that murder suspect Joshua Steven Durcho is not mentally retarded.
“It seems pretty clear to me,” said Shawn Roberson, a psychologist with the Oklahoma Department of Mental Health and Substance Abuse Services.
The testimony came on the third day of a hearing to determine if Durcho is ineligible for the death penalty because of a mental condition now commonly referred to as intellectually disabled. The terms, “mentally retarded” and “mental retardation,” are still found in Oklahoma law, though.
Durcho, 29, is accused of killing his girlfriend and her four young children inside her El Reno apartment in January 2009. His jury trial is set for September. Prosecutors are seeking the death penalty.
The prosecution's psychologist testified Durcho has an IQ in the low borderline range, “right at the cusp of mental retardation but not quite there.” He also testified Durcho does not have any significant problems with adaptive behavior.
Canadian County District Judge Gary E. Miller will rule after hearing more testimony from Roberson on Wednesday.
Earlier Monday, a defense expert told the judge that Durcho has mental retardation.
“He's had difficulty all his life in different adaptive skills areas,” said Denis Keyes, a professor of special education at the College of Charleston in South Carolina. “He has difficulty with things other people take for granted.”
Keyes said Durcho had particular trouble as a boy with communicating and was misdiagnosed in school as having only a learning disability.
Testimony so far in the hearing has revealed that Durcho took special education classes in schools in El Reno and Indiana, and he once was suspended for taking a knife to school. He dropped out of school at age 15.
The testimony also has revealed that Durcho went to prison when he was 20 for marijuana possession and fought often with other inmates. After his release, witnesses said, he smoked marijuana almost daily and sometimes used other drugs such as methamphetamine.
“He said he was very involved with drugs from a very young age,” Keyes testified.
He rarely had a regular job, working briefly as a cook once and then other times as a bricklayer and a mechanic, witnesses said. He made some money doing tattoos.
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.
A person of average intelligence will make from 90 to 110 on IQ tests, according to testimony.
Durcho scored a 72 on an IQ test given him last year by the psychologist used by the prosecution. He also scored a 72 on the same test given him in 2009 by a psychologist hired by his defense attorneys.
The defense psychologist, Antoinette McGarrahan, testified Thursday that Durcho's IQ could be as low as 68 because of the margin of error in the test. But the prosecution's psychologist disagreed, saying Durcho's IQ could only be as low as 69.88 because of the margin of error.
Durcho scored a 78 when he was 13 and a 75 when he was 9 on a different intelligence test given him by El Reno school officials. Defense attorneys contend the test he took in school is not a legitimate IQ test.
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.
A half brother, Dallas Due, testified last week that Durcho admitted choking Summer Rust.
The defense expert, Keyes, disclosed during his testimony Monday that Durcho said he had lived in the apartment, often helped get the children ready in the morning and that they called him, “Daddy.”
Many who deal with or care for the intellectually disabled consider describing them as retarded extremely offensive. During the hearing, attorneys at times have referred to the sensitivity surrounding the words the law requires them to use.