The Mississippi Supreme Court has agreed to decide whether a Washington County prosecutor can be forced to pay the cost of an appeal for what was deemed his inappropriate closing arguments in an assault case.

The issue before the Supreme Court has nothing to the conviction of Kenneth Brown for aggravated assault and shooting into a dwelling. The conviction was upheld by the state Court of Appeals in 2006.

Instead, prosecutors asked the Supreme Court to determine if the Appeals Court, in its 5-3 decision, went too far when it assessed Assistant District Attorney Brad McCullouch the costs of the appeal and preparation of the record.

McCullouch, who left the district attorney’s office this past November, was cited by the Appeals Court for making a “send a message” closing argument in Brown’s 2004 trial in circuit court.

According to the court record, Circuit Judge Betty Sanders repeatedly sustained defense objections to McCullouch’s closing argument on grounds he was trying to entice the jurors’ emotions against Brown.

The Appeals Court declined to order a new trial for Brown on the issue of prosecutorial misconduct. The court said the prosecution’s case against Brown was so strong as not to be affected by the closing arguments.

Nevertheless, the Appeals Court cited McCullouch for violating Supreme Court admonitions against “send a message” arguments.

Since 1996, “send a message” closing arguments have been frowned upon by the Mississippi high court.

At one point in 1999, the late Presiding Justice Michael Sullivan had to say “we really mean it” — emphatically directing prosecutors to stop using “send a message” closing arguments to jurors.

By 1999, the Supreme Court was more forceful.

In a strongly worded admonition, Sullivan wrote that in the future, “where sufficient evidence exists to show that a prosecutor is persistently ignoring our admonitions against use of the ‘send a message’ argument, we will not hesitate to sanction him with the costs of a new trial where necessary.”

Since then, the Supreme Court has said that an appellate court can order a new trial when it finds a “send a message” argument was improper and affected the accused’s rights.

In the Brown case, Appeals Judge T. Kenneth Griffis said McCullouch’s comments were “improper attempts to arouse the jury’s fear and indignation about the irrelevant issue of overall crime in Washington County.”

“The statements called on the jury to just say no to crime rather than to vote on Brown’s guilt. The jury’s job was to decide whether or not Brown was guilty beyond a reasonable doubt. Any other matter was beside the point. Furthermore, the prosecutor encouraged the jury to vote based on what the community will think, insinuating that a vote for Brown was a vote against the community,” Griffis wrote.

Griffis said the Appeals Court had the authority — if it had overturned Brown’s conviction — to order McCullouch to pay for the cost of a new trial. Instead, Griffis said the court would assess McCullouch for the cost of the appeal including preparation of the trial court record. No specific amount was cited by the Appeals Court.

Appeals Judge Leslie D. King, in a dissent, said the issue of sanctions should be addressed by the trial judge, who was in the best position to determine how the jury responded to McCullouch’s allegedly improper argument.