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

People who cannot afford a lawyer, jailed in Alaska on another state's arrest warrant, have a statutory right to a court-appointed one, the Alaska Court of Appeals held Tuesday in a published order, resolving a question no Alaska appellate court had answered before. Chief Judge Allard and Judges Wollenberg and Beach vacated a decision by Kenai Superior Court Judge Lance Joanis, who had told Donald Richard McNeely there was no right to appointed counsel in his habeas case, the civil proceeding that tests whether a jailing is lawful. They sent it back to Kenai with directions to appoint public counsel.

The ruling affects anyone arrested in Alaska on an out-of-state fugitive warrant who cannot afford a lawyer. Alaska's extradition statute, AS 12.70.090, requires a judge to tell such a person that another state has demanded them, what they are charged with, and that they have the right to demand and procure legal counsel. The Court of Appeals held that phrase includes a lawyer at public expense, matching the overwhelming majority of other states, and noted that appointing the Public Defender Agency in extradition cases already appears to be common court practice.

McNeely was held at Kenai on a California warrant over burglaries alleged in San Diego County in February 2026. The order says he is indigent. 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 sought a lawyer again, saying his health prevented him from representing himself; that motion was never filed, apparently rejected because it was on the wrong form.

At an evidentiary hearing Aug. 10, McNeely said he had recently been hospitalized, had undergone an MRI a week earlier, and had service-related traumatic brain injuries. The superior 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, said his nitroglycerin was not working, and an ambulance was called, ending the hearing.

At a phone hearing two days later, McNeely again requested counsel, but the state argued he was not entitled to one in a habeas case and had already been found competent to represent himself. The superior court, suspecting delay tactics, denied counsel and a continuance. McNeely then hung up twice while the state presented evidence. The court denied the petition after finding McNeely was the man named in the warrant, one of only four questions such a petition can decide, and expressed skepticism about his unverified medical claims. On appeal, McNeely says he had a heart attack at that hearing; the appellate record contains no documentation of his condition.

The state argued the ruling should stand as a discretionary call and as untimely. The panel agreed discretion usually governs, but said that deference does not apply when the question is whether the trial court applied the correct law. Unable to know how the superior court would have ruled under the correct standard, the panel wiped out the decision and sent the case back. It added that these proceedings are meant to be expedited and that the superior court keeps broad discretion to prevent further delay.

The Kenai docket shows the counsel request repeatedly missing the court through a form mismatch between the civil habeas case and McNeely's criminal case. The petition was denied and the case closed on Aug. 12, 33 days after filing. The next day the clerk returned a Request and Order for Appointed Counsel, submitted on a criminal form. An Aug. 25 clerk memo said the case was closed and his motions had not reached the court until Aug. 24. A footnote in the order says the criminal and habeas proceedings are directly related despite the separate case number.

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 p.m. Sept. 29 and an evidentiary hearing for 9 a.m. Oct. 5, both in Kenai Courtroom 2. The extradition has been stayed since Aug. 27.

This account comes from the appellate order in McNeely v. State of Alaska, Court of Appeals No. A-15097, and the Kenai trial court docket. Neither record contains comment from McNeely, his new lawyer, the Public Defender Agency, the Kenai court or the Department of Law.