Joshua Durcho Mentally Fit To Stand Trial

After a five-day hearing, an Oklahoma judge rules- a man accused of killing his girlfriend and her four young children, is not mentally disabled, allowing prosecutors to seek the death penalty.

Canadian County District Judge Gary Miller ruled Joshua Durcho does have a learning disability, but he does not meet the legal definition of mental retardation- which his lawyers were trying to seek. "The U.S. Supreme Court has ruled that we cannot give the death penalty to a mentally retarded person," said David Slane, Fox 25 Legal Analyst. "That's what the defense was trying to do, was first- attempt to save this young man's life." Oklahoma law prohibits the death penalty for defendants with an IQ of 70 or below. But, records show Durcho scored a 72 twice on IQ tests given to him after his arrest in 2009.

"Had the Judge found that he was mentally retarded, under the law, they would not have proceeded further. He would have been treated as a person incompetent to stand trial," said David Slane.

Fox 25's Kisha Henry visited the town of El Reno, where Summer Rust and her four young children, all under the age of eight, were found strangled to death. "Whenever I saw the children, and saw that there were babies and little children... it was horrific," said one woman. "I think he deserves the death penalty," said one man. "He should already be dead," said another.

But, even though the Judge has declared Durcho as mentally competent to face the death penalty, that may not happen. Slane says, after the jury decides his guilt or innocence, the decision must be made again. "If they find that he's guilty, then the defense gets to put on the defense of mental retardation all over again and it will be up to the jury to decide," said Slane.

Durcho faces five counts of first degree murder for the January 2009 strangling deaths of Summer Rust and her four children- who were all under the age of eight-years-old. Durcho's trial is scheduled to begin September 17.Joshua Durcho Mentally Fit To Stand Trial

Posted: Thursday, August 2 2012, 09:45 PM CDT