ELIZABETHTOWN, KY (WAVE) - The Commonwealth of Kentucky has dismissed all charges without prejudice against Brent Burke for the 2007 murders of his estranged wife and her former mother-in-law.
Around 4:15 p.m. Wednesday, Burke was released from the Hardin County Detention Center, but was taken into custody of military officials at Fort Campbell where he had previously served as a Military Police officer. During his confinement, Burke's Army enlistment ended. It is expected that he will be officially processed out of the Army. That process could take several days to complete.
By dismissing the charges against Burke without prejudice, the Commonwealth has the ability to charge him for the same crime again if new information or evidence becomes available.
In a ten page order, Hardin Circuit Court Judge Kelly Mark Easton said Commonwealth Attorney Chris Shaw, who prosecuted the case against Burke, had determined that "the evidence currently available is not sufficient to result in a conviction." Easton based his decision to drop the charges on Shaw's statement, saying a lack of evidence "is a valid reason for a prosecutor to seek dismissal, even though the victims or others might disagree with his assessment."
Twenty one people filed affidavits with the court, arguing for or against Shaw's announced intention to drop the charges. Eighteen of them were filed on behalf of the victims, Tracy Burke, the defendant's estranged wife, and her former mother-in-law, Karen Comer.
Families of the two victims argued in a court hearing last week that Shaw did not consult them before filing a motion to dismiss the charges. However, Shaw says he did send a letter to the families to let them know a conviction would be unlikely with the current evidence if the case goes to trial a fifth time.
Judge Easton noted in his order that Shaw met with some members of the victims' families on June 10. During that meeting, the described Shaw as "rambling" and "evasive" when asked about his plans to retry Burke.
Easton's order also mentioned a "persistent complaint of Shaw's lack of availability" in many of the affidavits filed by family members.
Burke has gone to trial four times in the September 2007 shooting deaths of Tracy Burke and Karen Comer in Rineyville. The first two ended in a mistrial and the last two ended with hung juries.
The order states that in the most recent trial, eight of the twelve jurors voted for conviction, while four were for acquittal. In the first trial that went to a jury, the order says the members were split 6-6 on guilt or innocence.
The families of Tracy Burke and Karen Comer said they plan to file both civil and wrongful death lawsuits against Brent Burke.