LCpl Mendoza testified that he went down the hall and opened the door to the back room. Inside he saw about five to six children and women. He believed they looked scared and he did not perceive any hostile intent or act on their part. He closed the door and spoke to LCpl Tatum telling him that the back room had women and kids in it. LCpl Tatum responded, "shoot them". LCpl Mendoza repeated that "it is just women and kids" and left LCpl Tatum to post security near the kitchen. LCpl Tatum walked down the hall. A short time after, LCpl Mendoza heard gunfire from the back of the house but did not investigate the location where the gunfire was occurring. LCpl Mendoza did not witness anyone entering the back room of House 2 and is not a witness to the gunfire.

LCpl Tatum's statements to NCIS prior to May 2007 and in his unsworn statement at the Article 32 hearing deny knowledge that there were women and children in the back room of House 2 prior to shooting. His version of events is that he entered an empty room off the hallway and, while looking, around heard gunfire coming from the adjacent room to the right. He quickly responded to the gunfire by going to the room. Upon seeing a Marine engaging targets in the far side of the room, he opened fire. He did not use positive ID because he considered the house hostile and was responding in assistance to a Marine who was already engaging the targets.

Safah Yunis Salim Rasif, the lone surviving Iraqi witness from House 2, provided statements through an interpreter that are consistent with both versions of events. The exception is that she states that a Marine threw a grenade into the room and closed the door. The grenade did not explode. The grenade caused them all to move to the back part of the room near the bed. After hearing what sounded like pipes bursting and running water coming from down the hall, her Aunt opened the door and saw Yunis lying on the ground. Her Aunt started to scream and was then shot through the doorway by a Marine. The Marine continued into the room and started shooting at everyone on the bed. She dived to the corner between the wall and bed and was not hit with any bullets. She described the first Marine as being shorter than her. A second Marine entered the room and started shooting and attempted to shoot her under the bed but the rounds missed her leg.

Forensics from the room at the bottom right in the diagram (from the Investigating Officer's report)

NCIS Special Agent Maloney created a forensic reconstruction with three shooter positions. This reconstruction corroborates the statements of LCpl Tatum and Safah. The location of the shooters, angles of impact and resulting actions of the victims is logical, concise and convincing.

Is the prosecution's star witness believable?

LCpl Mendoza is the prosecution's star witness against both SSgt Wuterich and LCpl Tatum. Unfortunately for prosecutors, Mendoza shares a credibility gap with their other star witness, Sgt Dela Cruz.

As the Investigating Officer noted in weighing Mendoza's credibility, Mendoza killed two unarmed men.

The first, Guhid, he testified he considered had hostile intent when he turned to go into a closet. The second, Yunis, he shot upon being ordered by SSgt Wuterich. He has since been given testimonial immunity and testified believing he would not be prosecuted for his actions in house 1 or 2. Witnesses that testify under grants of testimonial immunity and can be viewed as co-actors must be examined closely. LCpl Mendoza admits to providing previous false sworn statements and also testified that he included into his statements "facts" which he did not know but adopted based on representations of NCIS. (See transcript of LCpl Mendoza's testimony where he informs the IO that he included "facts" in his sworn statement because NCIS told him, not because he knew it was true.)

Problematic with his version of events is Safah witnessing a Marine tossing a grenade into the room and that the Marine who entered and began shooting was shorter than LCpl Tatum who is over six feet tall. Additionally, LCpl Mendoza claims that LCpl Tatum was in the hallway but there is no mention of where SSgt Wuterich is located. It seems odd that a conversation would occur in this relatively short hallway and SSgt Wuterich would pass them to enter the room first. LCpl Mendoza testified that he did not witness what happened in the room and that he was not sure if something happened that gave rise to hostile intent or act. Finally, it is difficult to believe that LCpl Mendoza decided to protect his fellow Marines who he believed murdered 7 women and children and only after he is given testimonial immunity for his actions, he decides he no longer wants to protect them and provides a version of events that implicates LCpl Tatum. More likely, he provided a version of events to his counsel and that was part of the negotiations with the government for testimonial immunity. Furthermore, his demonstrated malleability to the truth and ease of manipulation by counsel makes his credibility highly suspect and in my opinion, it is not prudent to base a prosecution primarily on his testimony.

LCpl Tatum provided several statements to NCIS investigators that are all consistent with the forensic evidence but contradicts LCpl Mendoza's statements in that he maintains always that he did not know there were women and children in the back room of house 2 prior to entry. LCpl Tatum's unsworn statement at the Article 32 denies he identified women and children before shooting. Essentially, the only contradictions are whether he was informed of the presence of women and children and whether he admitted to identifying them prior to shooting. All other facts he relates seem to be consistent.

If all of LCpl Tatum's statements are taken as true, the facts become that he is inside house 2, believes it is hostile because he witnesses LCpl Mendoza shoot a man and is ordered to and does, throw a grenade into another room. While checking additional rooms he does not throw more grenades but does look inside. While looking inside one room he hears gunfire from the adjacent room and responds....