Death row inmate Mack Arthur King asked the Mississippi Supreme Court on Monday to order Lowndes County to provide him with money to hire an expert to try to prove he is mentally retarded.

James Rocap III, a Washington D.C. attorney representing King, said the defense could not put on mental retardation arguments without up-to-date testing.

Assistant attorney general Jason Davis said the trial judge acted properly in 2003 to deny King the money for an expert.

Davis said 20-year-old mental evaluations conducted in 1983 were adequate for the trial judge to rule King was not mentally retarded. He said the trial judge had expert testimony about the results of the 1983 tests to rely on.

King’s case was before the Supreme Court for the fourth time.

King was first sentenced to death in 1980, then again in 1998 and again in 2003 for the killing of an elderly Lowndes County woman.

King was first convicted and sentenced to death for the Aug. 3, 1980, murder of 84-year-old Lela Patterson. The woman was beaten, strangled and drowned at her home during a burglary. Her body was found in a bathtub. When he was arrested, King had some of her belongings, according to court records.

Rocap said the 1983 testing was invalid now under procedures put in place since the U.S. Supreme Court ruled in 2002 in a Virginia case that it’s illegal to execute people who are mentally retarded. The court said it would be a violation of the Eighth Amendment prohibition of “cruel and unusual punishment” to execute anyone with a combined IQ of 75 or lower.

In dispensing with dozens of mental retardation claims from Mississippi’s death row, the Mississippi Supreme Court has required the inmates to produce an expert opinion that the defendant possessed an IQ of 75 or below and that further testing showed the inmate was not malingering.

“The mental capacity issue was central to the sentencing decision itself,” Rocap said. “Mack King was denied opportunity, was denied the funds to hire an expert to get that testimony.”

Rocap said the trial judge was presented the affidavit of a psychiatrist, who without having tested King, had concluded King “could possibly be found mentally retarded.”

“Mr. King did not have any expert help at all,” Rocap said. “The judge based a decision on the slim record of 20-year-old results. There is a much more advanced and complete picture that this court now requires to determine mental retardation. We did not have the opportunity to do that.”

Davis said the trial judge did not have before him the guidance provided by the Mississippi court after the ruling in the 2002 Virginia case and relied on what was available to find King was not mentally retarded.

“This is not a case whether tests were not done, Mr. King was examined and he was tested,” Davis said.