ELIZABETHTOWN, KY (WAVE) - The murder trial of a former Fort Campbell soldier takes a surprising turn Thursday morning when Senior Judge Janet Coleman ruled to throw out interviews Brent Burke did with police before he was arrested.
The defense argued the interviews should not be allowed as evidence because Burke was never advised of his Miranda Rights when he was interviewed.
"And throughout the entire process, he (Burke) is under the control of the Military Police and the KSP. That's what's very clear," said David Broderick, Burke's defense attorney. "Even up to the end of the interview when they left him in a room and he's confined to this room with a company commander in the hall."
During a hearing, before Burke's trial continued, KSP Detective, Larry Walker, said he interviewed Burke September 2007 -shortly after the double murder of his ex-wife and her former mother-in-law.
Walker said he considered Burke a 'person of interest' when he questioned him at Fort Campbell -September 2007. "I went down there I interviewed him. I gave him the benefit of the doubt he told me what he was doing that night," Walker recalled.
But, the defense argued Walker had already labeled Burke a suspect and failed to let him know his rights.
Broderick asked Walker: "You did not tell him, Brent, you are free to go". Walker responded with "no".
Broderick said his client was ordered by Fort Campbell's Military Police to report to a conference room where Burke would later be questioned. Walker said, at first, the meeting was to tell the defendant about the deaths. Walker said that same day he went to Burke's barrick to collect evidence.
But, the prosecution argued Burke's statements to state police investigators should be allowed in court. Prosecutor, Chris Shaw, referred a U.S. Court of Appeals ruling "where a defendant was not in custodial interrogation when she had been ordered to a military facility where she worked".
Judge Colemen sided with the defense. "I think its clear that the police were in control of his movements during that period of time," she said.
Judge Coleman said she also based her decision on the military's action. "I think he should have been Mirandized and according to the Smith case the remedy is to suppress those statements taken by the defendants.
Burke, a former military policeman, is on trial for the third time. He is accused of killing his estranged wife, Tracy Burke, and her former mother-in-law, Karen Comer, at Comer's Rineyville home on September 11, 2007. The first two trials both ended in mistrials.