Prosecutors have been unable to convict Army Sgt. Brent Burke of a double murder in four civilian trials and had decided to not try him again. But Burke now faces the likelihood of a military trial in which a unanimous jury is not necessary to find him guilty.
After two hung juries and two dismissed mistrials, the case has been turned over to the military where only two-thirds of the jury would have to believe him guilty in order to convict him.
"I wouldn't say it's common," said Victor Hansen, a professor of law at New England Law and a retired Army lawyer, referring to the military trying a soldier for a crime that was previously tried in a civilian court.
Burke was charged with two counts of premeditated murder in the deaths of his estranged wife, Tracy Burke, and her former mother-in-law from a previous marriage, Karen Comer. The two women were found shot dead on Sept. 11, 2007 in Comer's Rineyville, Ky., home when one of three children at the house called police.
In June, after another mistrial, charges against Burke were dropped.
Less than two weeks later, the military charged Burke with two counts of premeditated murder. There is no issue of double jeopardy between a civilian court and a military court.
As a soldier, Burke is expected to conduct himself under the Uniform Code of Military Justice, which is the military's set of laws and ethics.
"He's in the Army and he falls under the Uniform Code of Military Justice. He's still a soldier, an active solider, and the code applies to all service members," said Rick Rzepka, a spokesman for Fort Campbell, where Burke is stationed.
The process begins with an Article 32 hearing that started Thursday and is expected to wrap up quickly, as soon as today. This investigative hearing is similar to a mini-grand jury hearing. Witnesses are brought in and questioned and both the accused and the defense attorney are present.
John Galligan, a retired Army colonel and the defense lawyer for Nidal Malik Hasan, the Muslim soldier accused in the 2009 Fort Hood shooting, calls the Article 32 process "quite remarkable."
"I don't think there's anything comparable on a federal or state level," he said.
At the conclusion of the hearing, a military commander will make a recommendation about whether there is sufficient evidence to move to a court martial.
"The recommendations made by the officers are not binding, but certainly have persuasive effects on the final outcome," Galligan said.
Rzepka said that Burke has been appointed two lawyers who are soldiers, but they are not allowed to speak to press.
On Thursday, the Kentucky State Police detective who investigated the deaths, Larry Walker, spoke at the hearing. He said that both Comer and Burke were found dead in the house from gunshot wounds, according to the Lexington Herald Leader.
Police determined that six bullets were fired from the same gun, but the gun was never recovered. No DNA evidence connecting Burke to the crime scene was found, according to Walker.
A decision is expected next week as to whether the case will be tried in front of a general court martial where the death penalty or life in prison are possible punishments if Burke is convicted.
Under military law, Burke is liable for the death penalty if convicted. While Burke can be convicted of murder by two-thirds of the jury, the jury would have to be unanimous for him to be sentenced to death. It would also require a second unanimous vote by the jury to condemn him to death.