Alaska must appoint lawyers for people jailed on other states' warrants, appeals court rules

People jailed in Alaska on another state's arrest warrant who can't afford a lawyer have a right to a court-appointed one, the Alaska Court of Appeals ruled Tuesday, answering a question no Alaska appellate court had decided before.

Kenai Superior Court Judge Lance Joanis had told Donald Richard McNeely he had no right to appointed counsel in his habeas case, the civil proceeding that tests whether someone is being lawfully held. Chief Judge Allard and Judges Wollenberg and Beach vacated that decision and sent the case back to Kenai with directions to appoint a public lawyer.

State extradition law requires a judge to tell a person arrested on another state's warrant that they have the right "to demand and procure legal counsel." The panel held that includes a lawyer at public expense, as the overwhelming majority of other states have. It noted that appointing the Public Defender Agency in extradition cases already appears to be common practice in Alaska courts.

McNeely was being held at Kenai on a California warrant over burglaries alleged in San Diego County in February. The order says he cannot afford a lawyer. A district court appointed the Public Defender Agency in his criminal extradition case, but he waived that lawyer. He filed his habeas petition July 10 and later asked for a lawyer again, saying his health kept him from representing himself.

That request never reached the judge. The Kenai docket shows McNeely's requests for a lawyer kept going astray because they were on criminal-case forms rather than filed in the separate civil habeas case. The order notes the two cases are directly related despite their different case numbers.

At a hearing Aug. 10, McNeely said he had recently been hospitalized, had an MRI a week earlier and had service-related traumatic brain injuries. The court said there was no right to appointed counsel in a civil habeas case and told the state to proceed. Minutes later, McNeely reported chest pain and said his nitroglycerin wasn't working. An ambulance was called, ending the hearing.

At a phone hearing two days later, McNeely again asked for a lawyer. The state argued he wasn't entitled to one and had already been found competent to represent himself. The court, suspecting he was stalling, denied a lawyer and a delay, and McNeely hung up twice while the state presented evidence. The court found McNeely was the man named in the warrant, one of the few questions such a petition can decide, and denied the petition, expressing skepticism about his unverified medical claims. On appeal, McNeely says he had a heart attack during that hearing. The appellate record contains no documentation of his condition.

The case closed Aug. 12. The next day, the clerk returned a request for appointed counsel McNeely had submitted on a criminal form.

On appeal, the state argued the decision was a discretionary call that should stand. The panel agreed trial judges usually have discretion but said that doesn't apply when the question is whether the court used the correct law. Because it couldn't know how the judge would have ruled under the correct standard, the panel sent the case back. It added that these cases are meant to move quickly and that the trial court keeps broad discretion to prevent further delay.

The Public Defender Agency was appointed the day after the ruling, 75 days after McNeely filed his petition. A status hearing is set for 4 pm Sept. 29 and an evidentiary hearing for 9 am Oct. 5 in Kenai. McNeely's extradition has been on hold since Aug. 27.