On the recommendation of a jury, a circuit judge gave Ernest Johnson three death sentences for killing three convenience store employees in 1994. On his third appeal, he argued prosecutors must prove he is not mentally retarded.

The majority opinion says defense attorneys must prove a defendant is mentally retarded. The U.S. Supreme Court ruled a couple of years ago that mentally retarded people can’t be executed.

The three dissenting judges said there should be a new death sentence hearing at which prosecutors would have to prove Johnson is not mentally retarded.