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Defense attorneys say El Reno man isn't eligible for the death penalty

They argue the multiple-murder defendant may be mentally retarded and ineligible for death penalty. The El Reno man is accused of killing his girlfriend and her four young children in 2009.
BY NOLAN CLAY Published: August 4, 2011

“Based upon continuing investigation, present counsel have a good-faith belief that Mr. Durcho falls within that class of persons who, by virtue of mental retardation, are not eligible for the death penalty regardless of the circumstances of the charged offense,” his attorneys told the judge.

The attorneys told the judge they have records showing Durcho was in special education classes before he dropped out of school after the eighth grade. They also told the judge relatives and acquaintances indicate Durcho had low mental functioning as a boy.

In Oklahoma, a murder defendant is considered to be mentally retarded if his IQ is 70 or less and he also has “significant limitations in adaptive functioning.” The onset of the mental retardation must have been manifested before the defendant's 18th birthday.

It is different from being found insane. That is when a defendant is acquitted because he did not know right from wrong at the time of the crime.

It also is different from being found mentally incompetent. That is when a defendant cannot be prosecuted because he does not understand the nature of the charges against him and cannot assist in his defense.

The judge delayed the trial so defense attorneys can complete testing.

Still to be decided is whether Durcho is entitled to a separate jury trial on the mental retardation issue. Current state law does not allow a separate jury trial. Defense attorneys argue the law is unconstitutional.

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