Dad on trial for murdering mom, grandmother; then 4-year-old son testifies (Rineyville, Kentucky)

Dad BRENT BURKE is currently on trial for the murder of his "estranged" wife and another family member. The star witness? His then 4-year-old son, who says Daddy also pushed him down on his way out of the house after shooting the little boy's mom in her bedroom. Why is this not considered child abuse and child abandonment as well as murder?

http://www.thenewsenterprise.com/cgi-bin/c2.cgi?053+article+News.Local+20100823132620053053006

Burke trial: Child's competency questioned

By BOB WHITE

bwhite@thenewsenterprise.com

“I’m trying very hard to be very careful. ... It’s very difficult for a judge to evaluate these things.”

Jurors were absent from the courtroom when Hardin Circuit Judge Janet Coleman said those words Friday in response to arguments from defense attorneys representing former U.S. Army Sgt. Brent Burke who is charged with killing his estranged wife and his stepson’s grandmother.

The arguments revolved around a child witness’ ability to accurately perceive and portray for jurors events that occurred three years ago, when he was 4.

It’s an issue that’s been debated twice during competency hearings in the three years leading up to this month’s trial.

The son of shooting victim Tracy Burke and the defendant was, by all accounts, one of three children at the Rineyville home of Karen Comer when an intruder gained access to the Waterfowl Loop home sometime late on Sept. 10, or early on Sept. 11, 2007, and shot the two women.

During a July re-evaluation of the boy’s competency, the 7-year-old testified to having climbed into bed with his “Momma Tracy” the night before his “Old Dad … Brent” came into the bedroom and shot her.

The boy also said his father pushed him down on his way out of the home.

The boy flip-flopped on his answers to questions on other details of the shooting, such as who shot the dog and from which door the shooter entered the home.

He did not, however, stray from his statement related to witnessing his mother’s murder.

Coleman found the child competent to testify.

That ruling two months ago was a 180-degree turn from her finding that stemmed from an initial competency hearing held for the boy in May 2009.

Burke’s attorneys filed a motion Friday asking Coleman to reconsider.

The judge explained her original ruling and her reversal.

“I saw a child who, in my opinion, swung back and forth,” Coleman said regarding the 2009 competency hearing. “Perhaps he was intimidated when questioned by defense attorneys, but he did swing back and forth on his answers and he was easily led.”

Coleman said the boy’s changing answers was a big concern.

Of equal, and possibly even greater concern for Coleman at last year’s hearing was a statement from the boy about that he’d been in the company of his mother since her death.

“He did, in my opinion, fabricate information. …” Coleman said while explaining her decision.

The inconsistent statements, coupled with the boy’s apparent delusions about his mother, caused Coleman to declare him not competent to testify at two previously scheduled trials of Brent Burke — both of which ended in mistrial.

Coleman told attorneys Friday that she did not see the same “difficulties” in July that the boy had last year in keeping his statements consistent when answering attorneys’ questions.

After a court break Friday, Coleman announced that she had not changed her mind and that the boy is competent to testify.

Had either of the earlier trial attempts commenced as originally scheduled, jurors would not have been allowed to hear from the child.

It’s unclear when Commonwealth’s Attorney Chris Shaw will call the boy to testify. Shaw has not revealed his schedule of witnesses.

Burke’s attorneys were not pleased with Coleman’s ruling.

Chris Davenport argued that, regardless of the boy’s ability to maintain statements about his father shooting his mother during this year’s competency hearing, his memories still were those of an imaginative — even delusional — 4-year-old.

He aged one year between the two competency hearings, but Davenport emphasized that the boy’s root memories could not change, even if his ability to make and maintain statements had.

Broderick said during a lunch break Friday that the boy’s consistent statements at this year’s competency hearing was the obvious result of his being coached on what to say.

Burke’s son is the only documented witness claiming to have seen Burke commit any shooting.

Court filings show the boy allegedly made a statement that “Daddy shot Mommy and Grandma” to social workers who removed the children from Comer’s home the day police responded to the scene.

Broderick said Friday such a statement, had it been made by Burke’s son, simply could have been a repeat of chatter among first responders.

At the crime scene in the hours after the killings, the children were in contact with first responders, including state troopers, medics and social workers.

During trial testimony, child abuse investigator Kim Mudd said that a state trooper in charge of the crime scene specifically instructed social workers responding to the scene not to speak to the children about the shootings.