A homeless couple jailed for 82 days as witnesses in a manslaughter case have been freed, but a defense attorney who advocated for their release plans to continue to fight to change the state law they were held under.

A homeless couple jailed for 82 days as witnesses in a manslaughter case have been freed, but a defense attorney who advocated for their release plans to continue to fight to change the state law they were held under.

Jackson County Circuit Court Judge Ron Grensky ordered the release of Carl and Lynn Bogenschneider Friday, saying that their attorneys had presented a viable alternative to incarceration.

The Bogenschneiders plan to stay at a St. Vincent de Paul Society shelter in Medford and must check in weekly with a pretrial-release program designed to make sure criminal defendants show up in court. They each were given a payment about $600 — $7.50 per day they were incarcerated.

Grensky rejected defense attorney Christine Herbert's claim that the state's law on material witness holds violates Constitutional protections from unreasonable searches and seizures.

"I'm not prepared to declare it unconstitutional on its face," Grensky said.

Herbert said she will appeal that decision in hopes that the Oregon Court of Appeals will find the statute unconstitutional and force its revision.

Oregon law authorizes the prosecution or the defense to ask a judge to order witnesses held if they have relevant information and "will not appear at the time when attendance of the witness is required." The attorney applying for such a hold must present facts in support of the request.

"One wonders that the Fourth Amendment requires probable cause for search and seizure, but the state law (on material holds) doesn't seem to require that," said Vance Waliser, the attorney who represented Lynn Bogenschneider and joined Herbert's motions. Herbert represented Carl Bogenschneider.

Grensky noted that all the appropriate findings of fact had been filed in the holds on the Bogenschneiders. He said that the record showed that they tried to hide themselves and their belongings and weren't initially forthcoming with detectives investigating the death of James William Revier, 42.

Revier was found dead June 3 after a fight with Brian Keith Garrett, 40, in a Medford homeless camp where the Bogenschneiders were staying, along with Timothy Hilbert Williams, 39. Williams, who has a long history of arrests and failing to appear to face charges, remains in jail as a witness. Garrett had pleaded not guilty to a first-degree manslaughter charge, but prosecutor David Hoppe asked Grensky to set a chance for Garrett to change his plea next Friday.

Another homeless material witness, Alexis Fehlman, 34, was lodged in jail Aug. 10 in a murder case involving her boyfriend, Richard Lee Pruitt, 40. Pruitt is suspected of killing Darin Drake, 47, in a field off Interstate 5 near Central Point in September 2006 and his trial is set for Feb. 5.

Jackson County Sheriff Mike Winters said average costs for keeping a person in jail here range between $72 and $74 a day. The witnesses take up beds that could otherwise house criminals, but the jail is there to serve the needs of the court, he said.

The law requires witnesses held in jail get a $7.50 daily payment, which comes from the district attorney's office budget for witness expenses, District Attorney Mark Huddleston said.

At Friday's hearing, Waliser noted that these were unnecessary expenses for the county as cheaper alternatives were available.

Dina Harris, who oversees Jackson County Community Justice's pretrial-release program, testified that a simple check-in program costs $25 a month. The court can assign people awaiting trial to visit a community justice office daily or weekly. That was the option assigned to the Bogenschneiders.

Home detention with an electronic bracelet system costs $18 a day, Harris explained. The system, which uses radio frequency signals and phone lines, can't be used at local motels, an alternative that attorneys explored before turning to the St. Vincent de Paul shelter.

The Bogenschneiders, clad in jail uniforms, turned to thank those who had testified about the options for their release as deputies led them back to jail after the hearing. They had to return to jail to be served subpoenas to testify in the case as needed and to get their possessions and checks for their witness fees.

Herbert said she was pleased that the Bogenschneiders had been released, but she was disappointed that they were still being treated like people facing criminal charges, with requirements to check in with authorities.

"I've never seen this happen to other citizens," Herbert said.

Reach reporter Anita Burke at 776-4485 or at aburke@mailtribune.com