Procedures Governing Appeals With "Moffett Issues" Filed in the Appeals Court

A guide outlining the duties of appointed counsel when a client's appeal includes issues that counsel believes to be frivolous.

Introduction

In Commonwealth v. Moffett, 383 Mass. 201 (1981), the Supreme Judicial Court established principles and procedures regarding appointed counsel's duty to represent an indigent criminal defendant on appeal when counsel believes the appeal, or particular arguments the defendant seeks to be included in the appeal, to be frivolous. These procedures, outlined below, are based on the following principles:

Appointed counsel is not permitted to withdraw representation solely because he/she believes that the appeal is frivolous or otherwise lacks merit. Moffett, 383 Mass. at 207.

Even if counsel has doubts about the merits of an appeal, counsel must prepare and submit a brief arguing any issues that may have some merit. Id. at 216. See Supreme Judicial Court Rule 3:07, Massachusetts Rules of Professional Conduct (Rule 3.1 defines an issue as not frivolous where there is a "good faith argument for an extension, modification, or reversal of existing law").

Counsel is precluded from advancing groundless contentions. Moffett, at 207.

Appointed counsel must support the defendant's appeal to the fullest extent possible. Id. at 208.

Procedural Guidelines: Moffett Preface and Moffett Brief

The following procedural guidelines are to be followed by appointed counsel when a client's appeal includes issues that counsel believes to be frivolous ("Moffett issues"):

1. Counsel must prepare and submit a brief arguing any issues that may have some merit. Id. at 216.
2. If counsel determines that there is nothing to support a contention which the defendant insists on pursuing despite counsel's efforts to dissuade the defendant, counsel should present the contention succinctly in the brief in a manner that will do the least harm to his client. Id. at 208. Counsel should present the contentions sketchily by designating pertinent portions of the trial transcript and citing any relevant cases. Id. at 216-217.
3. If counsel, due to professional or ethical concerns, deems it absolutely necessary to dissociate from the purportedly frivolous contentions, counsel may do so in a preface to the brief ("Moffett Preface"), which is to include a statement that it is filed pursuant to the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981).  Moffett, 383 Mass. at 217. The preface may apply to the entire brief, or to certain contentions found within. Examples of a Moffett Preface are provided below.
4. Beyond including a Moffett Preface, counsel must refrain from injecting disclaimers of personal belief in the merits of the case or otherwise arguing against the defendant's interests. Id. at 217.
5. If a Moffett Preface is included in the brief, the following procedures apply:
   1. Upon the filing of the brief prepared by counsel in the Appeals Court, and service upon the Commonwealth, a copy of the brief must be sent to the defendant, and his/her attention must be directed to the Moffett Preface.
   2. Counsel must inform the defendant that he/she may present additional arguments to the court within 30 days.
   3. Counsel must include in the brief a certification stating that the defendant has been notified of the inclusion of a Moffett Preface in the brief with a copy of the certification sent as a separate document to the Commonwealth. In addition, counsel must file a copy of the certification as a separate document with the Clerk's Office. See id. at 208 and n. 3.
   4. Additional arguments to be submitted by the defendant must be made in the form of a brief ("Moffett brief"), and must comply with Mass.R.A.P. 16, 19 and 20, including containing accurate references to the transcript and record appendix. A Moffett brief may be accompanied by a supplemental record appendix containing documents that were not filed with counsel's brief and record appendix, provided that the supplemental record appendix conforms to the requirements of Mass.R.A.P. 18 and 20 (table of contents, chronological order, consecutive pagination).
   5. The Clerk's Office requests that counsel format the defendant's Moffett brief to comply with court rules, and on behalf of the defendant, forward the submission to this court, and serve the Commonwealth.
   6. Upon the filing of the defendant's Moffett brief with this court, and service thereof on the Commonwealth, or upon the expiration of the 30 day period allowed for the defendant to file a Moffett brief, whichever first occurs, the Commonwealth has 30 days to file its brief.  Id. at 208 n. 3. The Commonwealth may file one brief in response to the brief filed by the defendant's attorney and the Moffett brief. If necessary, the Commonwealth may file a motion to exceed the page limit in responding to the arguments raised in both briefs. See Mass.R.A.P. 16(h).
6. If the court finds merit in any issue, whether raised by appointed counsel or by the defendant, the court on its own motion may appoint new counsel and order rebriefing and reargument. Id. at 208 n.3.
7. The brief prepared by counsel, and any other submissions by counsel or the defendant, must comport with the requirements of the Massachusetts Rules of Appellate Procedure.

Sample Wording of a Moffett Preface:

"I, [name of attorney], have been assigned as counsel on appeal for the defendant. Argument [x] has been included at the defendant's insistence. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from Argument [x]."

"I, [name of attorney], have been assigned as counsel on appeal for the defendant. This brief has been filed at the insistence of the defendant. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from this brief."

"I, [name of attorney], have been assigned as counsel on appeal for the defendant. The sole argument raised in this brief has been made at the insistence of the defendant. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from this argument."

Applicability of Commonwealth v. Moffett to Motions for New Trial

The Moffett decision does not apply to appointed counsel representing a defendant in a motion for new trial because Moffett is premised on the right to counsel, and there is no right to counsel in connection with a new trial motion. See Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983).  Accordingly, appointed counsel in these circumstances can select which issues to litigate, and, if the client disagrees and insists on other issues being included, s/he may have to choose between forgoing some issues or proceeding pro se.

Filing of Supplemental Pro Se Briefs

The procedural guidelines outlined above must be followed in order for a defendant to file a Moffett brief. If a court-appointed attorney files a brief that does not contain a Moffett preface, then the defendant is precluded from filing a supplemental brief, unless he/she, via motion filed by counsel, seeks leave of the court to file such a brief, and the court allows the motion. Supplemental pro se briefs must comply with the formatting requirements in Mass.R.A.P.  If the Commonwealth has already filed its brief, upon request it will be granted additional time to file a supplemental brief or memorandum in response to any supplemental pro se brief.