Homeless witnesses still in jail

Defense attorneys will make another attempt today to free a homeless couple jailed as witnesses in a first-degree manslaughter case.

However, with four people — all homeless — lodged at the Jackson County Jail as material witnesses in two separate cases, attorneys and activists are increasingly concerned about how material witness holds are used.

"It's happening more and more and will continue as long as the state gets away with it," said Christine Herbert, who is representing one of the jailed witnesses, Carl Albert Bogenschneider, 51.

Bogenschneider, his wife, Lynn Ann Bogenschneider, 46, and Timothy Hilbert Williams, 39, have been held in the Jackson County Jail as material witnesses since June 3. The three were staying at a homeless camp in Medford when a late-night fight broke out between Brian Keith Garrett, 40, and James William Revier, 42. Revier was found dead June 3 after the fight and Garrett faces a first-degree manslaughter charge.

In the other case, Alexis Fehlman, 34, was lodged in jail Aug. 10 on a material witness hold related to 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.

Fehlman and Pruitt, who don't have permanent addresses, were taken into custody in New Mexico in May, court records show. A medical issue prevented her from coming back to Jackson County until this month, said Sgt. Jeff Proulx of the Oregon State Police, which investigated the homicide.

The number of material witness holds issued in recent years isn't available through court, jail or district attorney's office records, but officials stress that they are rare.

"It's very rare that we have to do it," Jackson County District Attorney Mark Huddleston said.

He said his office has sought such holds only in serious felony cases that involve harm to people and would carry lengthy sentences. He said no such holds were placed last year.

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."

Huddleston said the factors he considers when weighing whether someone will show up in court include whether they have failed to appear before, whether they are foreign nationals, whether they are in the country illegally and whether they have a transient lifestyle.

Herbert argues that plenty of homeless people she has represented in criminal matters check in responsibly and show up for court dates, so the lack of a permanent address shouldn't land a person in jail.

"That's a very sad message to be sending, that your right to be free means nothing if they want to lodge you," she said.

Constitutional protections ensure that authorities must have probable cause to detain a person, she said.

"Having information about a case and not having an address isn't probable cause," she said.

Herbert said she thinks it is important for defense attorneys to stand up for rights of people held in jail, and she worked closely with advocates for homeless people up and down the West Coast as she prepared for today's hearings on the possible release of the Bogenschneiders.

Brian Willoughby, communication director of the Oregon affiliate of the American Civil Liberties Union, said offices in Portland and Eugene have gotten multiple inquiries about concerns over the material holds of homeless people in Jackson County.

"They've all been of a tone of outrage," he said, adding that the organization is studying the situation to determine how and whether to get involved.

"There is a long history of people who are homeless having to fight for their civil liberties," Willoughby said.

The Bogenschneiders, who haven't been able to see one another while jailed, made an emotional plea last week to be released so they could stay together in a motel or elsewhere, promising to appear at Garrett's upcoming trial, set for Sept. 25 and 26.

Herbert has contacted St. Vincent de Paul to arrange a chance for the couple to stay at the organization's Medford homeless shelter with electronic monitoring and will present that option at a hearing set for 11:30 a.m. (Correction: See below.)today before Jackson County Circuit Court Judge Ron Grensky.

"Part of our mission here at St. Vincent de Paul is fighting for social justice," said Kathy Morgan, St. Vincent de Paul's vice president of community relations.

She said this was the first time the organization had gotten involved in possibly providing lodging for material witnesses and would evaluate it on a case-by-case basis. The board decided that the Bogenschneiders, who have no criminal history and likely wouldn't be targets of retaliation for testifying, would be a safe fit at the shelter.

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

Correction: The wrong time for the hearing was listed in this story. This version has been corrected.

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