EL RENO, Okla. — It was the scene of an unimaginable crime. Inside an El Reno apartment on Jan. 12, 2009, five people were found dead; Summer Rust and her four children, Autumn, Kirsten, Evynn, and Teagin. One by one, they were strangled to death.
Although the anger has subsided, one question remains for Rust’s brother, Robbie Booth.
“How could you,” he asks. “I mean, five times in a row?”
Booth talked to us exactly three years after the murders.
He says there has been no healing at all.
“No. No, we’re still waiting on the trial,” he says. “The healing won’t start ’til after the trial.”
The trial is for the suspect, Joshua Durcho, who was Rust’s boyfriend.
Prosecutors said Durcho killed Rust because she threatened to call the police on him.
Warrants were out for his arrest on drug and DUI charges and he had vowed never to return to prison.
Rust’s family is now fed up with a justice system that has delayed that trial for more than three years.
“What about Summer’s rights,” Booth asks. “You know, what about those kids’ rights? We’re all too concerned about Josh’s rights and I’m not really not concerned about him or his rights.”
Why hasn’t this trial started?
An OSBI affidavit says Durcho confessed to an Edmond woman, “that he choked Summer until she was dead,” the afternoon of the killings.
He waived his right to a preliminary hearing three months after the murders, which often happens when a plea bargain has been reached.
But in August of 2010, Durcho’s lawyers removed themselves from the case because of an undisclosed conflict of interest.
Oklahoma County Chief Public Defender Bob Ravitz says new defense lawyers start from scratch.
“If the lawyers need to be replaced, it could take another 12 or 14 months to get ready for a trial in that serious of a case,” he says. “They have to reinvestigate the case. They have to talk to the witnesses.”
Then last year, Durcho’s new attorneys claimed they discovered that Durcho is “mentally retarded” and therefore not eligible for the death penalty.
They said Durcho had a score of 72 on an I.Q. test.
Retardation is defined by an I.Q. test score of 70 or below, but Durcho’s score, attorneys said, makes him “mildly mentally retarded.”
“Yeah, it’s ridiculous,” Booth says. “I know him, you know? He’s not retarded.”
“You don’t just say your client is mentally retarded for the sake of saying it,” Ravitz says. “You’ve got to have the background, the factors that seems to show it.”
Former Oklahoma Attorney General Drew Edmondson says the defense team will have to prove retardation was documented well before the murders.
“The courts are very suspicious of mental retardation that doesn’t appear until the defendant is 25 or 30 years old and in legal trouble,” Edmondson says, “Because it’s too easy to fake. It’s too easy to not get any questions right on the written exam.”
The most recent delay?
Durcho’s attorneys asked for a separate jury trial to determine retardation.
Why? His attorneys are concerned about “the danger of a jury becoming so angered or incensed about the circumstances of a crime, that the decision regarding mental retardation would be unduly influenced.”
A judge refused to allow a separate trial, but the defense is challenging that ruling with the Oklahoma Court of Criminal Appeals.
The death penalty is on the line.
“It is not unusual for a case to go one, two or three years,” Edmondson says. “Because it (death penalty) is the most serious thing that society can do, short of war.”
Edmondson points out the Sixth Amendment states “the accused shall enjoy the right to a speedy and public trial,” not the victim or their family.
He says a long delay in any criminal trial generally favors the defense.
“Memories fade, witnesses move,” Edmondson says. “Some witnesses die.”
“I just kind of want it to be over,” Booth says. “Or at least to begin, to heal, you know?”
Ravitz sympathizes with Rust’s family, but says it’s the duty of everyone involved to see that the law is followed.
“If we want finality, give him a fair trial right off the bat,” Ravitz says. “Do whatever is necessary. If it means taking a little extra time, it’s time well spent in my opinion.”
“My sister has rights too,” Booth says. “I believe our family has some rights to some closure. Let’s not forget the victims.”
Booth says his family would be OK with Durcho getting life without parole, if it meant a quicker trial.
But he says prosecutors are determined to give Durcho the death penalty.
The Canadian County D.A.’s office and Durcho’s defense counsel both said they will not speak publicly about the case.