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FRANKFORT (AP) - After expressing concerns about how Kentucky's execution procedures handle issues of mental retardation and insanity, a state judge said Wednesday he will rule by the end of the week in a case that could halt a scheduled execution in the state.

Franklin Circuit Judge Phillip Shepherd said during a hearing that Kentucky's execution regulations appear to be silent on how the state Department of Corrections is supposed to handle those issues when it comes to a condemned inmate.

"It seems to me that this regulation could be followed to the letter and someone who is mentally retarded could still be executed," Shepherd said.

Shepherd's comments came during a hearing in a lawsuit brought by 53-year-old Gregory L. Wilson and two other death row inmates challenging how Kentucky adopted its administrative procedure of carrying out an execution.

Wilson was condemned to death for kidnapping, raping and murdering 36-year-old Deborah Pooley in Kenton County in northern Kentucky. His execution is set for Sept. 16 at the Kentucky State Penitentiary in Eddyville.

The death row inmates are attacking how Kentucky put it's current execution method into place, saying the state didn't comply with the law on adopting administrative regulations and that the protocol is incomplete. Kentucky put the three-drug method back in place in May, seven months after the state's high court ruled that it previously had been adopted improperly and halted all executions.

Wilson joined the suit Wednesday, seeking to stop the state from carrying out his execution. He's also appealed to the Kentucky Supreme Court to grant DNA testing in his case, as well as testing to see if he's mentally retarded and ineligible for execution.

A Kenton Circuit judge last week turned away Wilson's request for mental testing and DNA testing, saying the issues were either raised too late or wouldn't make a difference in the outcome of his case.

Kentucky's protocol covers a variety of issues, including what to do about a condemned, pregnant inmate, but doesn't address if or how the state Department of Corrections should determine whether an inmate is mentally retarded or insane.

"What safeguards are in place to do that?" Shepherd asked.

Brenn Combs, an attorney representing the Department of Corrections, said the department's job is to carry out legally imposed sentences, not to determine their validity.

"Everything comes from an order," Combs said. "When an execution is set, it comes from an order from the governor."

Public defender David Barron, who represents the other two inmates in the suit, said not giving an inmate an IQ test before execution is "absolutely absurd," particularly given that a pregnancy test can be administered.

"The question is, should the Department of Corrections be allowed to potentially violate the law by not looking into something?" Barron said. "The answer is obviously no."

One of Wilson's attorneys, Leo Smith, said a test given to Wilson when he was 14 measured his IQ at 62, well below the legal floor of 70 upheld by Kentucky's high court and the U.S. Supreme Court. Another of Wilson's attorneys, Maggie Keane of Louisville, said Shepherd needs to determine if the execution process has been properly put in place and is complete before an execution takes place.

"To delay a man's death is not an inequity to the Commonwealth," Keane said.

Assistant Attorney General Heather Fryman noted that Wilson's case has been in the courts for more than two decades and he never raised mental competency before now.

"We've had 22 years of judicial review," Fryman said. "Twenty-two years of litigation is sufficient protection."

Shepherd, who has reviewed various rulings in Wilson's case, was skeptical of how the judicial process functioned in handling Wilson, saying there's no "good answer" on the question of whether the inmate is mentally retarded or insane.

"I've got to say, I'm not sure the system has worked in Mr. Wilson's case," Shepherd said. "It troubles me that we're on the verge of an execution here."

(Copyright 2010 by The Associated Press. All Rights Reserved.)