The Article 32 investigation was called to order at 1233, 14 June 2007.

IO: The hearing will come to order.

TC: The government calls Special Agent Mike Maloney, sir.

Special Agent M. S. Maloney, NCIS, was called as a witness by the prosecution, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by Major Erickson:

Q. Special Agent Maloney, please state your full name and spell your last for the record.

A. Michael Sherman Maloney, M-A-L-O-N-E-Y.

Q. And you are currently a special agent with the Naval Criminal Investigative Service?

A. I am.

Q. How long have you been an NCIS agent, sir?

A. I have been with NCIS as a special agent for about 16 years.

Q. We already entered into evidence your curriculum vita. I just want to go over some background in your current field. What is your current duty or daily assignment?

A. I am assigned as a senior forensic consultant. And I am assigned to the Far East region out of Okinawa, Japan. I cover the Far East parts of the Middle East.

Q. Can you describe for the IO what responsibilities lie in that billet.

A. Certainly. As a forensic consultant, my primary responsibility is not the investigation of the various things NCIS investigates, but to bring forensic expertise to the case agents working those investigations. I provide crime scene support, support to our major case response teams, which would be NCIS's version of a crime scene investigation team. I provide forensic analysis to scenes, everything from dynamics, mechanism of injury, trajectory analysis, blood stain pattern analysis, general scene indicators, and bringing them together to reconstruct scenes. I also provide training in all of those areas, both inside of NCIS and outside of NCIS.

Q. Sir, I am going to break it up just a little bit. I think it is important for the IO to understand the different disciplines that go into being a crime scene reconstruction or forensic reconstruction analysis. Could you do that for me, specific fields?

A. Certainly. Death scene reconstruction or crime scene reconstruction, depending on the specific scenario, involves emerging of a variety of disciplines of course. Most of us are familiar with bloodstain PATD earn analysis. It also includes bloodstain pattern analysis. It also includes trajectory analysis, mechanism of injury, how the injury occurred, wound dynamics, the physical appearance of the wound and what may have caused it or what direction it may have come from, general scene indicators, and merging together all of the knowledge and experience that comes with crime scene processing into that as well. So I guess the easiest way to explain it would be is it's a multi-disciplinary function.

Q. Is there special training that is required to become an expert in that area?

A. There certainly is.

Q. What is that?

A. There is a variety of different courses to become a forensic consultant. The one that I followed is I have a Masters degree in Forensic Science. I have a year's fellowship in forensic medicine. I have 40 hour or more courses in basic forensic pathology, advance forensic pathology, forensic anthropology, forensic dentistry, post-blast examination and investigation, bloodstain pattern analysis, firearm trajectory analysis, and quite a few more. I attend training seminars, and I also teach in the field as well.

Q. When you say you teach in the field, what do you specifically teach?

A. I teach a variety of subjects. I taught, at the university level, forensic biology. Within the federal government, I taught at the Federal Law Enforcement Training Center in Glen Cove, Georgia. I actually taught and developed a 120-hour advance crime scene processing course. I teach a 40-hour, and developed a 40-hour, basic crime scene processing course. I teach death investigations. I teach post-blast investigations. And I also present seminars and a variety of training opportunities. I have taught for the Delaware police. I taught to the Virginia Homicide Investigators Association. In a variety of foreign countries, to the host nation's police forces and military legal systems.

Q. If I had to wrap all of that up in a couple of words, what would you be called?

A. Forensic consultant is the title.

Q. How many forensic consultants are within NCIS?

A. We currently have -- I am not the head of the division, of course; but I think we currently have ten of us in the field practicing.

Q. And where do you stack up in them ten?

A. I am considered a senior forensic consultant, one of two.

Q. Who is the second one?

A. The second one is Special Agent Tom Brady out of Mayport, Florida.

Q. Special Agent Maloney, you are familiar with why we're here today with regards to the Haditha investigation?

A. Yes, I certainly am.

Q. Can you tell the IO how you first got involved with the Haditha investigation?

A. I was contacted -- and I would remember the specific dates -- but it would have been early March that there was an investigation that had come to light in an area known as Haditha, Iraq.

Q. Is that March 2006?

A. Yes, that would be March 2006. I was given some basic information and told that it looked as if NCIS was going to mount a death scene and forensic response to attempt to process the scenes and gather forensic evidence. It was, at that time, part of my area of coverage. I covered both the Far East and Middle East. I told them I was interested in responding to that. I was given more information. And a couple of weeks later when the shots and the equipment could be arranged, I was on my way to Iraq.

Q. Was there anything specific with regards to this particular consult that you were going to become involved in that caused you concern?

A. That is an interesting question. Can you narrow the scope of that? I had everything from concerns if could I take 14 immunization shots in one day down the line. So I'm sorry.

Q. Special preparations, was there any required special preparations for this particular death scene examination?

A. Yes, certainly. This was a death scene examination that we were aware that we would be relatively mobile. We would have to carry the gear with us and be able to walk in with it. We wouldn't have the luxury of a death scene or crime scene or response van with us with all of our gear in it. In addition to that, we would be wearing protective gear and body armor, which is not something we normally process scenes in. We were aware that our time might be severely limited in the processing of each scene. So though causing a concern, it is not a completely unique or unusual situation. It just required extra preparation.

Q. Are you familiar with the term "tactical crime scene examination"?

A. I am familiar with that term, yes, sir.

Q. What does that mean to you?

A. Tactical crime scene investigation is the term that is still used by some agents. It actually was what the course was first called when it was written. I had an opportunity to be the primary instigator of the course of instruction, which is now taught at FLETC. It is now titled High Risk Operations Training Crime Scene Investigations, specifically utilizing techniques and equipment for being able to move into an area and meet the exact conditions we just talked about, highly mobile, able to process a scene in a shorter amount of time than we might normally do in a different environment.

So I had the opportunity to write that lesson plan and have it approved and to teach the first iteration or two. It is now taught regularly there. That was based on my experience in the Middle East. I was stationed in Bahrain for a period of time and covering areas where it was apparent we needed more mobile equipment and easier way to get in and out.

Q. Special Agent Maloney, do you know what Lance Corporal Sharratt is charged with here today?

A. Yes, I am aware of what he is charged with.

Q. And you are aware of the area that is of concern in the Lance Corporal Sharratt case?

A. Yes, I am.

Q. And that has been termed in the NCIS report as house four?

A. Yes. We refer to that as house number four.

Q. I am going to focus you on when you got to Haditha, Iraq.

A. Certainly.

Q. And I am going to focus you to the Haditha dam.

A. Yes.

Q. Who was all part of your team when you were at the Haditha dam?

A. Special Agent Mark Cranfield was the overall investigative leader. He was sent out from one of our units at headquarters. I was given lead over the forensic processing of the scenes there. Working with me was the other forensic consultant, Tom Brady, out of Mayport, Florida. We were partners for that. We were augmented by Special Agent Tony Blane, Special Agent Nadya Mannle, and Special Agent Mark Platt. There were others that came in and out, but that was the central core of the team that responded.

Q. Once you got to the dam and assembled your team, what, if any, plan was developed at the dam?

A. We took the information that we had at the time.

Q. I am going to stop you there. I got to find out what information you had at the time.

A. The information we had at the time was as much as we could learn. Though I didn't review original reports in any way, I reviewed synopsis of -- and I might use the wrong terminology -- Army AR-15 Investigation, is that the right terminology? -- equivalent to a JAG-type investigation, the news articles that had come out on it.

We had synopses of some of the statements of individuals that had been interviewed concerning that.

And there was an NCIS team that involved Special Agent Brian Brinningham [ph] had gone out to Haditha about a week before we did that had gotten a look and provided us some information.

So we had information as to the interior layout of two of the structures, though not detailed interior of house four. We had a layout of what sort of -- we had an idea of what sort of evidence we might expect to encounter there, as in firearm evidence and potential bloodstain pattern evidence. And we put that together into a plan, which is part of the whole tactical crime scene – I will use your word -- tactical crime scene responses that you want to know -- you want to have an idea before you go in of what you are looking for and where you are looking for it. We also had photographs that were provided to us at that time.

Q. Do you know where the photographs came from?

A. I believe the photographs were taken as part of – they came from the civil affairs officer. Is that Major Hyatt, I believe?

Q. Okay. Now, when you said before you developed a plan, tell us about the plan.

A. Specifically for house four?

Q. Yes. Let's stay with house four.

A. We broke apart each of the different scenes. And we formulated a plan much like law enforcement might plan a SWAT raid. We looked at the pictures provided that showed clear damage of the interior of the homes. We looked at the pictures that were provided that showed the state of repair for the homes. Four months had passed since the actual incident. By looking at the photographs of repaired areas and matching with the photographs taken when the damage was still there, we knew, for instance, let's say the southeast corner of one room, we were going to be looking for firearm evidence. And it appeared as if the bullet holes had plastered over, but perhaps they still existed beneath that.

So it wasn't the traditional, you start at the door and you work every inch of the house going in. It was targeted into the areas where there was the most likelihood of recovering forensic evidence. We talked about that at the dam. We developed a plan. We coordinated that. Everyone had input into where we were going to do it. So that would have been really our first step of the dam.

Q. What if any drills or dry runs did you do back at the dam?

A. That would have been the second step. After we had a plan developed, we went down to the basement of the dam where there were large open areas. And we practiced moving into the location as best we knew the layout of it. And we practiced being coordinated as a team. In other words, this individual is going to scrape for possible blood or biological evidence. This person is going to collect it, fold it, bag it, and tag it. This team is going to photograph and move through.

So we completely familiarized all the team members with the equipment that we had there. And we did essentially a dry run of going into the respective areas and trying to expedite our collection process and our documentation process in light of the fact we didn't know how much time we would actually have on that scene.

Q. As you understood it in house four, what was your target area?

A. The target area of house four that we identified would have been the bedroom where the deceased were discovered, the area directly outside of the bedroom, and we would also look in the areas where the Marines had reported to be to see if there was possibility of forensic evidence that would determine that they were there in the home.

Q. Did you ultimately make it to house four?

A. Yes, we did.

Q. And who on the team that you earlier described actually accompanied you to house four?

A. The team in its entirety accompanied us to house four. Then we split into different duties. Nayda Mannle, who originally had assignments working with us in the crime scene area, she actually ended up not working with us in the death scene area, and instead moving over and working in interviews that were available to be done there.

Q. Special Agent Maloney, while you were there at the house, you conducted a death scene examination?

A. Yes, I did.

TC[Maj Erickson]: Permission to approach the witness, sir?

IO: You may.

TC[Maj Erickson]: Handing the witness what has been marked as Investigative Exhibit 71, death scene examination. I believe this is a report that is page 1 through 39. I am also going to hand you a second part of that, which is Investigative Exhibit 71A, the continuation of the photos. We're not going to go through the entire exhibit and the other exhibit, but there are some areas I want to concentrate on today.

WIT[SA Maloney]: Certainly.

Questions by Major Erickson continued:

Q. First off, are you familiar with this document, Investigative Exhibit 71?

A. Yes, I am familiar with this document.

Q. Why are you familiar with it?

A. I was lead on the death scene investigation team, and I authored this document.

Q. And that is reflected at the end of this document, which says reporting agent -- you know what, yours doesn't have page numbers does it?

A. Mine does have page numbers, yes, sir.

Q. Page 13 all the way in the back, it says "Reported by Michael S. Maloney."

A. Yes, that's correct.

Q. Special Agent Maloney, what goes into -- first off, let's go to Paragraph 5 on page 2.

A. Yes, sir.

Q. Explain to us what caveats are with regards to this crime scene examination.

A. A caveat is to make it clear to the reader that a situation exists that may not be naturally assumed by that reader if it is not pointed out. In this case, we certainly pointed out that the death scene examination was being conducted in excess of four months after the reported incident. We point out that during that four months, it was not under law enforcement control. It was not a scene that was maintained with yellow crime scene tape around it. Certainly, there was the possibility of people traversing, moving through it, altering it, etcetera.

We explain in the caveat that visible blood and tissue may have been cleaned or may have been washed over. We may actually just be looking at somewhat diluted or washed over images of those stains. Also, that we utilized photographs that were taken by a variety of sources, and that those photographs were not taken by law enforcement sources for law enforcement purposes. I believe that covers, for the most part, the caveat.

Q. When you went into house four, what were you focused on finding, if anything?

A. Was focused on finding forensic evidence, and specifically the forensic evidence that we would have expected or hope to find would have involved biological evidence, the ability to document bloodstain patterns, and indications of firearms evidence that might indicate trajectories and potential shooting positions.

Q. Let's take that second one, the firearms evidence. Did you in fact find firearms evidence in that room?

A. Yes, we did. We recovered firearm evidence from that room.

TC[Maj Erickson]: Permission to approach, sir?

IO: You may.

TC[Maj Erickson]: I am handing the witness Investigative Exhibit 79.

Questions by Major Erickson continued:

Q. Before we get to Investigative Exhibit 79, Special Agent Maloney, the firearms evidence that you were hoping to obtain, did you ultimately obtain firearm evidence?

A. We did.

Q. Could you please turn to page four of your crime scene examination.

A. Yes.

Q. Subparagraph G is titled "firearms evidence"?

A. Yes, it is.

Q. This is where you explained the firearms evidence obtained during that crime scene?

A. That is correct.

Q. If you go to the next page, page 5, the top paragraph, that last sentence of the top paragraph, could you read that to us, please.

A. The bullet is designated as F2 and was removed and entered into the NCIS evidence custody system as item B, log number 172-06.

Q. Sir, for the IOs ease of understanding – because there's a lot of numbers in here and a lot of letters. That is one of the reasons I gave you Exhibit 79 as well. First off, is that an accurate statement?

A. No, that is not an accurate statement.

Q. Why is that?

A. Administrative error, most likely on my part, is that I have it listed as 172-06. And it is actually 173-06.

Q. Explain to us how that particular fragment was collected to where this may have been a mistake or how it was documented?

A. Certainly. It was collected physically from the bullet hole in which it rested in. It was then given a designation -- it was given a designation at the scene, which would not have been the 172 or 176. It was then put in a bag, sealed, marked. Then an ECD document was done.

Q. ECD?

A. Evidence custody document is done. When an evidence custody document is done, a log number is assigned. A log number is normally assigned by an evidence custodian or out of a logbook. And that number would indicate that -- in my report, I indicated it was the 172 item of evidence seized for that field office or that evidence facility in the year of 2006. In fact, it was the 173^rd item in the year 2006.

Q. So that should read, Item B, log number 173-06?

A. Yes, it should.

Q. Did you confirm that?

A. Yes, I did.

Q. How did you confirm it?

A. I went to the evidence facility here at Camp Pendleton and physically sighted this evidence earlier this week and confirmed that the evidence I refer to in my report as 172-06 is in fact 173-06.

Q. So if you look at Investigative Exhibit 79, on the front page under "exhibits," you have Exhibit 2 -- Exhibit 3 that says, Bullet, item B, log 173-06?

A. Yes, sir.

Q. And that would be the same as F2 in your report referencing 173-06. Correct?

A. That is correct.

Q. I got one more.

TC[Maj Erickson]: Now handing the witness what has been marked Investigative Exhibit 78.

Questions by Major Erickson continued:

Q. Does that look familiar to you?

A. Yes, sir, it's familiar to me.

Q. If you could turn all the way back to page 11 of 14.

A. I am at page 11 of 14.

Q. And first off, what is this document?

A. The document that I am holding is a report of laboratory analysis from the DNA branch of the United States Army Criminal Investigation Laboratory.

Q. And Exhibit 79 was the -- sorry, the other one that we just looked at --

A. The specific one you gave me was the DNA branch final report.

Q. The one I gave you before, I'm sorry. 79, what is that?

A. That is the firearms branch report from the same organization.

Q. So going back to the DNA report, look at Exhibit 3.

A. Yes, sir.

Q. And is Exhibit 3 the same bullet that you reference in your crime scene exam here on page 5?

A. Yes, it is.

Q. I am not going to do that with every one of them. I just want to make sure the IO knows how to read – I know he knows how to read -- but how to cross-reference what you designated as F2 is in fact 173-06, which is in fact Exhibit 3 in the ballistics report and Exhibit 3 in the DNA report. Is that a fair summation?

A. That is a fair summation.

Q. Okay. The second thing we discussed earlier was with regards to biological evidence. That is on page 5, paragraph H labeled "biological evidence."

A. Yes.

Q. Could you please explain to the IO exactly how that was labeled and charted?

A. That was labeled in a similar fashion. When we identified what appeared to be a bloodstain or biological evidence, meaning not a clear bloodstain but perhaps tissue or another biological substance in the walls, ceiling, or floor, we circled the general pattern. We then designated that pattern, B for biological, one through as many numbers as we ended up with. In this case, we ended up with approximately 40 of those.

That sample was then photographed in order to document the physical size and shape of the blood spatter. If we felt as if because of the faded appearance that it might not -- with bloodstain patterns, one of the things you look for is directionality, can you determine the direction that the blood struck the object in.

In some cases, the blood spatter was very fine and very faded. If we felt it would not show up clear enough on the photograph, with a Sharpie pen, we marked on the wall the actual analysis of the direction of travel of that bloodstain. And that was confirmed with another forensic consultant at the scene. We then took a photograph of the stain. We then scraped the stain into a proper receptacle, sealed it, tagged it, and it was entered into the NCIS evidence custody system.

So you might see stain B3, you would have a photograph of B3, then it would go into the NCIS evidence custody system where it would be given a log number and a letter designation.

Q. And that would be in the same manner as the bullet fragments?

A. In the exact same manner as the bullet fragments, yes, sir.

Q. And they would be given separate exhibit numbers in the DNA?

A. And then when that arrives at the USACIL lab, they will assign it their own internal number, correct.

Q. Special Agent Maloney, did you take notes during your crime scene investigation?

A. In the traditional sense of written notes, no. My notes were verbal and recorded on a digital voice recorder.

Q. During your crime scene examination, other than biological and firearm evidence, did you collect any other physical evidence?

A. We documented a portion on the wall that had handwriting on it that appeared to be in English. So we would have documented that. That would be a form of a question document type evidence. That certainly wouldn't be biological or the other. I can't think of any other evidence that we would have collected other than the biological, firearms, and that one instance of the handwriting on the wall which we documented.

Q. And you took photographic evidence?

A. We took photographic evidence, absolutely. And of course, we also measured the dimensions of the room, the length of the hallway. And yes, we did take photographic evidence as well.

Q. I will have you turn to page 14 of your crime scene examination of Investigative Exhibit 71. It would be Crime Scene Examination Enclosure 1. It is a diagram. Do you see that?

A. Yes, sir.

Q. And did you create that diagram?

A. Yes, I did. I prepared this.

Q. And the next page -- go to the next one, Enclosure 3.

A. Enclosure 3?

Q. Yeah, the next page after that one. We skipped a page. Is that house number four measurements? Do you see that?

IO: Before you go there, on page 14, it says "location of victims." Is that where you believe they were based on the photographs you received?

WIT[SA Maloney]: Yes, sir. Let me explain that, if I may. Based on the photographs that we reviewed of the bodies in the room, that is where they lay when they were photographed. That is not indicative of where we believe they were when they received gunshots necessarily.

IO: That is what I want to make clear. Thank you.

Questions by Major Erickson continued:

Q. House number four, measurements, do you see that?

A. Yes, sir.

Q. Are those measurement you took or your team took?

A. Those are measurements taken by the team. That is correct.

Q. The next page. You have house number four, firearms trajectory. Do you see that?

A. Yes, I do.

Q. Here we have -- do we have the ballistics information on this particular diagram with regards to F2, F1, bullets that were pulled out from the walls? Are they labeled on this document?

A. No. This would have been prepared before we received the firearms report from USACIL.

Q. Fair enough.

A. I'm sorry, let me reflect on that for a moment before I say that. We don't identify them by F1 or F2. However, we do identify the rough size and shape of the round as a 9-millimeter or consistent with a 5.56. I wanted to be clear.

Q. And then finally on Enclosure 5, you have "house number four, bloodstain patterns"?

A. Yes, sir.

Q. And all these circles -- this is a depiction of that room with the walls folded down?

A. Yes. This is a flat projection of the room. And each of the circles doesn't represent the actual pattern of itself. It represents the area where that pattern was documented.

Q. For each one of those numbers, you collected a sample for them?

A. That is correct.

Q. And you sent that on for DNA analysis?

A. That is correct.

Q. I am going to go ahead and pull a couple of these exhibits off your desk. Special Agent Maloney, I am handing you a document labeled "house four, shooter positions in bedroom." Does that look familiar to you?

A. Yes, it does.

Q. What is that?

A. I prepared this. This was a result of the forensic analysis work and forensic reconstruction work. That is a document that I prepared that showed the approximate position of the individuals in the room at the time I believe they received their injuries, the injuries that resulted in the bloodstain pattern that was documented and in the firearm evidence that was recovered and documented.

Q. Would this document aid in your testimony today?

A. Yes, it will.

TC[Maj Erickson]: Without the defense's objection, I would like to put this in evidence.

CC[Mr. Culp]: No objection.

IO: I think we're on number 100.

TC[Capt Hur]: I have it at 99, sir.

IO: I made a mistake on 97.

TC[Maj Erickson]: Now handing the witness Investigative Exhibit 70 and 56.

Questions by Major Erickson continued:

Q. Special Agent Maloney, looking at Investigative Exhibit 56, what is that document?

A. 56 is the results of forensic reconstruction and pathology consultation report for house four.

Q. What is the date on that document?

A. 5 October 2006.

Q. And you were once again identified as the reporting agent?

A. Yes, sir. I authored this document.

Q. Could you please turn to page 2 of that exhibit. Does this document look familiar to you?

A. Yes, it does.

Q. And how do you identify this document?

A. This is the actual report of forensic reconstruction that I prepared.

Q. Could you turn to page 5 of 9 now. Do you see about the middle the page where it says "attachments"?

A. I show that on page --

Q. 5 of 9?

A. Yes, your page numbering, not mine. Yes, I am on page 5of 9; and I see that.

Q. Where it says "attachments"?

A. Yes, sir.

CC[Mr. Culp]: Forgive me. I lost you. Are you on 70?

TC[Maj Erickson]: No, sir. I'm on 56.

Questions by Major Erickson continued:

Q. And then you got attachments number 2. What is that number two attachment?

A. House four victim and shooter position in bedroom.

Q. Although it is identified in here, it is not part of this actual IA. Is there any particular reason for that?

A. I don't know the reason that it's not attached to that. I prepared my documents in Okinawa. And I try to force them through the electronic system to Washington, D.C. where they are correlated into reports. Apparently, from the time I transmitted to when this report was published, that attachment did not go through.

Q. Is that document I gave you just before I gave you these exhibits, house four victim and shooter position, is that that exhibit, that attachment?

A. It is that exhibit, except for the one you handed me earlier is actually marked attachment number 3. It comes from an earlier version of my report when I had it marked as attachment number 3. But I provided that. And the information within the document remained unchanged when it was relabeled as attachment 2.

Q. So if I put this in this IA right now, would that IA be complete?

A. This IA would be complete.

Q. Thank you.

Special Agent Maloney, with regards to Investigative Exhibit 56, this report of forensic reconstruction, what is the date of this report?

A. The date of the actual report that I prepared is1 September 2006.

Q. Okay. If you look at Investigative Exhibit 70, what is this document?

A. The first page that I am looking at is the investigative action that brings in, as an enclosure, my report of forensic analysis.

Q. Let's go to page 2 then. We see the forensic analysis of death scene in house four. What is this document here?

A. It is exactly as the title reads. It is the forensic analysis of the death scene in house four.

Q. What the date of that report?

A. 8 November 2006.

Q. So could you tell the IO what the difference is what the report of forensic reconstruction and this forensic analysis of death scene in house four.

A. Yes, I will. In my normal course of business, I would not have prepared two separate documents. I would have prepared a single document. And the document that is dated 1 September 2006 would have been the conclusions to the forensic analysis of death scene at house four. That would have been combined as a single document. In this particular case, there was an articulated need by my supervisor to prepare a report that was separated from the 26-, 27-, or 30-page report that the forensic analysis would have normally been and to have it published first.

The decision was made to pull the conclusions and to publish them separately. Therefore, the conclusions chronologically appear to have been delivered prior to the analysis. In fact, the analysis was completed and just hadn't been final edited, spell checked, etcetera.

In this case, we have a disconnect where it looks as if the results were actually published almost two months before the analysis that led to the results. That is not the case. It was just an administrative mechanism of getting the results forwarded to our headquarters for reasons they felt were important.

Q. Special Agent Maloney, in Investigative Exhibit 70, which is the forensic analysis of the death scene at house four -- analysis of death scene house four, is this the meat and potatoes of your investigation effort with regards to forensic reconstruction?

A. Yes, this is the meat and potatoes. You could certainly put it that way.

Q. Are your conclusions contained in this report, or do we still got to look at that report to get our conclusion?

A. There are some conclusions in the forensic reconstruction report that are not in the analysis report. The conclusion of the analysis report actually refers you to the forensic reconstruction report for sequence and conclusions and things such as that.

Q. So these documents have to be viewed together?

A. Yes, sir, they do, and should be viewed in the appropriate order.

Q. Yes. Now, how does one prepare a report of forensic analysis of the death scene in house four? I don't want to go through all the physical things you did. I want to know about the actual procedure for completing this report.

A. The procedure for completing this report is to use the documentation available to prepare a forensic reconstruction. What I mean by that is to take the report of death scene examination, to take any medical reports or documentation of the wounds and injuries, to take all the photographs that are available to us of the scene both contemporaneous to the event and that were taken later, to take any consultation reports -- in this case, we had a consultation report by the office of the Armed Forces Medical Examiner -- and to take the forensic evidence that is available and begin to – I don't want to say -- and to begin to chronologically try to place physical events in the order in which they would have occurred, and then to prepare the report as a result of that.

Q. And you do that by yourself?

A. I am the primary author on it; but I certainly don't do it by myself, particularly in a case of this magnitude. I work with my partner, a senior forensic consultant, Tom Brady. There was a great deal of interchange back and forth as we prepared reports.

Q. Once you get to this product, and before you sign it, is there anything you have to do before it is published?

A. Yes, sir. We go through a peer review process.

Q. What is a peer review process?

A. A peer review process is where the report is handed over to a peer in the field, someone else who has similar training and experience in forensic science and has published reports as well. They read it. They are looking at it for a variety of different reasons. They look to see if the scientific methodology used is sound and within the confines of our profession. They look at the conclusions to see if they draw the same conclusions from the forensic material presented. They offer feedback or suggestions if they feel that an area is not articulated clearly enough that a lay reader could read it and come to the same conclusions. So that is our peer review process. In this particular case, instead of using a single peer reviewer, we had a peer review panel.

Q. This peer review panel, is it made up of NCIS forensic consultants?

A. No. There was a non-DoD affiliated senior crime scene analyst that was also brought in for a peer review.

Q. Why did you bring in a non-DoD analyst?

A. That was actually my suggestion to my supervisor. And I am grateful he embraced it. I felt on a case of this magnitude that it would be important to get a non-DoD look at this. We use DoD terminology within NCIS. So we're not military. Many of us are former military, and we're used to the acronyms and the jargon. We wanted someone to be able to read it without any of that knowledge to see if it made sense to them. We also -- the individual that we brought in for this is a recognized and published expert in the field of reconstruction and bloodstain pattern analysis. So this was a good check and balance for us. I felt it was an appropriate one. And all members, both Mr. Brady and all members of the peer review team, agreed with that.

Q. Before this report is published, does everybody in that peer group have to agree that that is going to be the final product?

A. Yes. That is essentially how it works. We take the report -- in this case, we sat in a hotel room for about a week and went through the report line by line, paragraph by paragraph. And if someone sees something in a photograph, sees a wording or sees something they are not comfortable with, they bring that up. It is discussed among the group.

Certainly, the author of the paper is given an opportunity to explain, alternate wordings are suggested that might make it clearer to a reader that is not as deeply involved in this particular case. So yes, by the time it is done, a peer review team, by allowing this report to be published, has agreed that the methodology and the conclusions are scientifically and professionally valid.

Q. So we can assume because this is a published report that both reports successfully went through peer review?

A. That is correct.

Q. Okay. We're going to discuss now actually what went on in that room, according to your forensic analysis. I want you to turn to page 7 of 18 of Investigative Exhibit 70. We're going to take them one by one.

A. Investigative Exhibit 70, page 7 of 18?

Q. Yes.

A. I have that page.

Q. The first thing I want to do, just so we're all on the same sheet of music, is the picture of the person on page 7, the caption under A identifies him as Kahtan Aiad Ahmed?

A. Most likely.

Q. Most likely?

A. Yes.

Q. Then in subparagraph A1, you have BEA number 22.

A. Correct.

Q. And you have "DNA identification man two"?

A. Correct.

Q. So all three of these methods of identification, name, BEA number, and DNA number apply to this gentlemen here?

A. Yes.

IO: Major Erickson, before we go on, my exhibit 70 has 11 pages.

TC[Maj Erickson]: Sorry. That was a misprint. We didn't make a change.

IO: That's okay. Just wanted to make sure.

Questions by Major Erickson continued:

Q. We got three means of identification on this gentleman, and we're going to call him Kahtan for ease of your testimony today.

A. Certainly.

Q. Explain to the investigating officer your analysis of his positioning when he received his --

A. May I refer to the exhibit that you have brought in, which is --

Q. The colored one here?

A. Yeah. I believe it ended up getting numbered 99 or 100. May I refer to that, sir?

IO: If it will help you.

WIT[SA Maloney]: It certainly will. Thank you. You can see Kahtan in this particular diagram in front of us is labeled as man number two. Man number two is based upon DNA analysis. That is the identification that the laboratory assigned for the DNA profile that matches for us this individual in the room. He is placed in that position because within the doorframe of the room and within the area adjacent to the door frame of the room, his bloodstain pattern is forensically identified as coming from man number two. So we know that we have a man standing within the doorframe or close to the doorframe at the time he is shot.

When we look at Dr. Rouse's reports on injuries and when we look at the photograph, we know that we have a man that's shot in the face. These are beginning to match-up. When we then look at the diagram that you asked me about earlier where the bodies were positioned on the floor and the place that they lay, we can see that there are two individuals that are by the door in that earlier diagram. One individual is closer to the open doorway, one is closer to the wall. When we do our analysis, we're then able to begin to link those up.

We have blood spatter within the doorframe. That blood spatter part of it is consistent with blood spatter we would expect from a gunshot event. We have an individual whose final resting position is in a logical position to be associated with an individual standing in the door at the time they are shot. We have an individual that's shot in the face and receives an injury which would most likely curtail purposeful movement after receiving the shot, therefore dropping to the position he is found in. And we have family identification through statements that state, When I came into the room, Kahtan was, for instance – this isn't an exact quote -- the first body that I saw.

So using all those events, we bring that it is likely that Kahtan was standing in the doorway facing outside the doorway or outside of the room at the time that he received his shot that debilitated him.

Was I able to explain that clearly enough?

Q. Yes, I think that was clear. We're going to get into a little more of that after we go through all four of them. I am going to have you turn to page 8 of 11.

A. Yes, sir.

Q. Same means of identification, same BEA number, DNA number?

A. Same means of identification.

Q. We're going to call him Jasib. Now Jasib – briefly explain to the IO his likely position when he was likely shot.

A. There is bloodstain patterns -- if you look at the diagram where we have man number three diagram, you can see he is in an area roughly to the side or behind the open door in the room. There is bloodstain patterns on the wall behind the door. Those bloodstain patterns are identified as most likely coming back to man number three. Those bloodstain patterns show the downward angle of impact which equates back to roughly him in the position we have drawn him in.

We have bloodstains behind the door and on the door. We have them coming back to a man number three through DNA analysis. We then have injuries on man number three which are consistent with him being in the position with an exit to the left side of the head, which would be responsible for that evacuation of the blood striking behind the door and against the doorframe.

So in that way, we are able to place man three, once again, through bloodstain pattern analysis, DNA analysis of the bloodstains, the position of his body when it's in the room at the time that the room is photographically documented, logically assuming that someone didn't go in and drag the bodies and switch them all around the room. We don't have blood trails, etcetera., that support that, and then the statements of the family members that went into the room saying where they encountered the individual by name.

Once again, it is difficult to explain in a minute or two minutes here. This is a painstaking process that took several weeks of daily analysis.

Q. I want to lay out all the positions. We're going to come back to them in detail. We're going to go to page 9 of 11. Same means of identification?

A. Same means of identification.

Q. We're going to call him Jamal. Jamal, what was his likely position?

A. His likely position was against the south wall of the room. At the time that he received his gunshot wound, lower in elevation than standard. So he was crouching or sitting is how I would describe it in the report against the south wall of the room facing outward because of the entrance. And once again, this was determined the same way, except he is the identification of exclusion.

We have DNA that comes back to man number two, man number three, and man number one. We don't have the DNA coming back to man number four. But he is the only other individual in the room that we have documented that received gunshot injuries. And we have a bloodstain pattern behind that position which is consistent with ejection from a gunshot wound. And we have a bullet trajectory that aligns with that position. So his DNA is one of exclusion. There are four people in the room. We can place the other three. We can place an individual being shot here. And he is the only one who hasn't been placed by DNA.

Q. Just so we're clear, explain why we have DNA identification numbers and the DNA identification doesn't say, This DNA belongs to Jamal?

A. The DNA samples from the decedents were never provided or obtained. So we do not have a DNA sample from Jasib, Marwan, or Kahtan, or any of those in the room.

Therefore, the DNA is used to establish a DNA profile and a position. And the other evidence, the photographs, the witness statements of who was where when they went into the room, are used to match them. That is why under the photograph we say "is most likely." We're not able to come up with the type of identification that would normally be associated with -- Marwan's DNA was provided, Marwan's DNA was analyzed, and this is where it is.

Q. So what we do have is four DNA profiles in that room not attached to anybody by name through laboratory test results?

A. Correct. And then we attach them as likely to names based upon the totality of the forensic evidence that's provided to us that is available.

Q. Thank you. Let's go back in a little more detail of man number four, Jamal. Turn to page 10 of 11.

A. I am there.

Q. And obviously the same means of identification for this gentleman as well?

A. Yes.

Q. Explain his likely position.

A. His likely position at the time that he was shot was crouched in the closed -- I am going to say closet unit, but I would like to define that. But I am going to say closet unit right now -- crouched in the second closed closet unit with the door closed at the time that he was shot. When I say closet unit --

Q. I am going to help you with that.

A. Thank you. Because I don't want to give the impression that this is a walk-in closet or the type of closet we're used to in the United States.

Q. We have pictures of all that stuff. We're going to go through it that way. I am sorry, the likely position was inside the closet. Is that what you said?

A. Yes, with the door closed. And that is identified through DNA once again and also bloodstain patterns.

Q. Let's start with him. We're going to go back to the results of the death scene examination, Exhibit 71. Do you still have that there?

A. I do.

Q. And Investigative Exhibit 71A, the photograph is there?

A. Yes, sir.

Q. What we can do is go ahead and turn to page 35 of 38.

A. Mine is marked page 35 of 55.

Q. On Exhibit 71?

A. I want to make sure I am on the same one. 71A?

Q. 71, I'm sorry. 71?

A. Thank you.

Q. Page 35 of 38 of Exhibit 71.

A. I am on page 35 of 39.

Q. Are you missing some pages?

CC[Mr. Culp]: I think that's right. I got the same thing.

Questions by Major Erickson continued:

Q. Bottom line, does it say "Enclosure 6, photo 15"?

A. Yes.

Q. Does that look familiar to you?

A. Yes.

Q. What is that?

A. That is the mobile closet unit that we referred to in the reports that was in the bedroom of house four that we conducted the death scene examination.

Q. So according to your analysis, where was Marwan in that closet?

A. Looking at the photograph, the second closet unit to the viewer's -- second closet unit from the viewer's right.

Q. You stated earlier that he was inside the closet. Now I am going to ask you how the heck did you know how he was inside that closet?

A. We know he is inside the closet at the time that he is shot because there is bloodstain patterns on the back closet panel, the rear closet panel, that is consistent with the wounds and injuries, both photographically documented and described by Dr. Rouse. And there is back spatter on the inside of the closet door that is consistent with back spatter from the entrance wound that would be associated with that. So we have --

Q. I am going stop you for a second. I need you to explain what "back spatter" is.

A. At the time a gunshot injury is received, it is not at all uncommon for blood to be ejected back out along the path of travel from the bullet. So if you have a through-and-through gunshot wound that perforates the body, it will have ejection of blood in the direction of the travel of the bullet. You may also have blood that is forced back out of the bullet track back towards, for lack of better words, towards the gunner or the source of the bullet.

Q. Continue, please.

A. We also have firearms evidence in that we have a bullet hole in the closet door. We have a bullet hole in the back panel of the closet that is contained at the top margin of the large stain that's associated with his exit wound. That goes completely through the back panel of the closet. There is an associated bullet defect in the wall behind it. And the bullet was recovered from that defect.

Q. Was that bullet tested?

A. That bullet was tested.

Q. What did it test as?

A. The bullet was tested. And it came back through the firearms division as a 5.56 round.

Q. Were they able to match that to any particular weapon?

A. They were able to exclude it -- they were able to definitely exclude it from any weapon submitted from the group of people involved that day, with the exception of, at that time, Sergeant Wuterich's weapon. So it was excluded from all weapons except for Sergeant Wuterich's.

Q. You said the bullet passed through a closed closet door. How did you determine it was a closed closet door?

A. We were able to determine it is a closed closet door several ways. One is the bullet travels in, for lack of better words, a relatively straight path. Granted, it is hitting wood, it's hitting bone; but if you look at the defect in the wall behind the closet, if you look at the defect in the back panel of the closet, and if you look at the defect in the closet door, the closet door has to be closed for those paths to roughly align. That also aligns with the entrance wound described in Marwan's head and the exit wound that we see.

We also know that the closet door was closed because, once again, the results of the back spatter, blood being ejected back through the entrance wound, hits the inside of that door. When we look at that back spatter, if the door were open, that back spatter wouldn't be striking the inside of the door. The door certainly appears to be closed at the time that that back spatter is striking it. So we have both the trajectory of the round, and we have the bloodstain pattern evidence that indicates to us that that door was most likely closed at the time that shot was received.

Q. About how high was that bullet hole in the closet door and in that back wall? You can go ahead and look at your chart.

A. Thank you. You are referring to me having measurements on charts, and I am having more difficulty finding that for you. Are you looking for a general height off the floor, or are you looking at a specific measurement?

Q. General height off the floor.

A. It is at about maybe three feet from floor level.

Q. Would you have that in your notes somewhere?

A. I would have that somewhere. I would have to find that measurement. If not, I have a photograph from which the measurements could be determined. That's certainly how we were able to position him crouching down within the closet instead of standing up.

Q. So if we go to Investigative Exhibit 71A -- that is the package there right in front of you.

A. Yes, sir.

Q. And you look at the second page, page 2 of 55, is that the hole?

A. That is the bullet hole that I have been discussing from the outside of the closet to the inside, yes.

Q. Let's see if we can marry that up with that picture that we looked at earlier?

A. The inlay design allows you to marry that up.

Q. That photo is page -- I don't have a page number. Enclosure 6, photo 15 -- I'm sorry. Let me give you an exact page number. Page 35 of 38 of Exhibit 71. So if we look at that photo and we look at this one here, we have the actual BH3 circled on page 2 of 55. Can you estimate about how high that is?

A. Once again, estimating between three and four feet.

IO: We might want to take a break here. Before we take a break, I have one question while you are still holding that picture. You said that the individual you believe was inside the second wall locker from the right, if you looked at the wall.

WIT[SA Maloney]: Yes, from the viewer's right.

IO: Is that the one with the padlock on it?

WIT[SA Maloney]: It is the one with the padlock and what appears to be a blue hasp thing going across, sir.

IO: Does that door open to the right or to left as you look at the picture?

WIT[SA Maloney]: It opens towards the wall to the right. The hasp unlock being the only portion that would swing out into the room, sir.

IO: Let's take a break for about five minutes.

The Article 32 investigation recessed at 1338, 14 June 2007.

The Article 32 investigation was called to order at 1347, 14 June2007.

IO: This Article 32 hearing is called back to order.

Questions by Major Erickson continued:

Q. Special Agent Maloney, I think we left off with Marwan, the person that you determined was killed inside the closet there. With regards to the IO's questions with regards to the direction the doorway opens --

A. Yes.

Q. How did you forensically determine what position that door was when the bullet lodged itself into that back wall?

A. By aligning the bullet hole -- the bullet hole in the back of the closet and the back panel with the bullet hole in the door, and also determined it by the presence of back spatter in the inside facing of that door, which would indicate that the inside of the door was facing the entrance wound at the time it was received.

Q. Is there any particular characteristics or traits that a bullet hole would take on that helps you determine the directionality of the round?

A. Certainly. Depending upon what object it goes through, if it is going through and through, if it is perforating, it tends to splinter as it exits a surface.

So if it is going through glass, it leaves a blow out on the back side of the surface. So there is a variety of ways of telling based upon the surface, and also logically from the source. And the next would be when you find the bullet at the end of the path of travel, it is easy to track back that path of travel and know which end of which because the bullet is at rest within the wall.

Q. So did you actually do a path analysis of that hole with anything?

A. We did it with what we had available there, which was a very strong pinpoint light. And when the light was passed through it, it lined up with the hole in the back of the closet.

Q. Did you do the laser light through the hole maybe when the door was open?

A. Yes, we certainly did, when it was open. It didn't align with the hole of the bloodstain pattern in the back of the closet.

Q. Did anybody get inside the closet and point the laser through the hole as the door was closed?

A. No one actually got inside the closet. It was rather heavily contaminated with biological tissue. But the light was also put behind the closet with the closet door closed as much as possible, and then arched back and forth to see what path that light would have taken across the room.

Q. Did you investigate whether or not there was any defects in that ark or in that pattern?

A. There were none closely associated with that ark or pattern of light, none closely associated with it.

Q. Let's go back to your report of results of forensic analysis on Investigative Exhibit 70. We talked about Marwan and his likely position and why you determined it was his likely position. Let's just flip back one page to page 9 of 11. Let's talk about Jamal.

Walk us through. On your diagram here, you have already placed him as -- do you have an identification number there? Investigative Exhibit 70 page 9 as number four. And on your chart here, you have man four here.

A. Yes.

Q. And that is on the south wall?

A. That is against the south wall. Correct.

Q. In your chart, you have a door open.

A. That is correct.

Q. And you have a trajectory that looks like he is shot while that door is open. Explain to us how you came to that conclusion.

A. Like I said, this was one of the ones that took several weeks. We clearly had one shot that went from the exterior of the closet through the interior of the closet. We clearly had a second shot that originated on the interior portion of the closet door and exited through the exterior portion. That shot was obvious by the splintering on the exit side. It was apparent from looking at that.

On the south wall, we had a bullet defect. Within the suspected bullet defects, we actually recovered a bullet. So we knew that it was more than a suspected defect. It was in fact a bullet hole. We were able, once again using point light, to line up the trajectory of the two with the closet door being nearly open to the full 90-degree position. Then that bullet hole coming from the inside of the closet door to the outside of the closet door aligned with the bullet that we recovered from the bullet hole in the south wall. That is how we were able to determine that trajectory. We were able to place him there because that bullet hole in the south wall is within a bloodstain pattern which is consistent and normally associated with a gunshot wound.

Q. Now, was that bullet that was pulled out of that wall, was that analyzed?

A. Yes.

Q. What was the result of that analysis?

A. The result of that analysis was that it was a 9-millimeter round of U.S. manufacture.

Q. This bullet hole that passed through the inside of the door to the outside, and allegedly passed through and hit that south wall, how did you determine that -- sorry, let me rephrase that. You said the bullet passed through that closet door while it was open. Correct?

A. Yes, sir.

Q. Is that the same door that you said earlier a bullet passed through while it was closed?

A. Yes, sir.

Q. So now we have two bullet holes in the closet door?

A. Yes, sir.

Q. How did you determine that this particular bullet hole was the one responsible for that hole on the south wall?

A. Once again, using the pinpoint light, shining it through, it clearly matched. The light clearly passed through in a straight line and intersected the wall at the same point that the bullet hole was. It clearly did that. It is roughly the right size and shape. We looked to the left and right. There wasn't another bullet impact that lined up with that. In order to line it up, the closet door had to be open to near 90 degrees.

Q. Did you do the same thing with that bullet hole, take the light and do an area for which that door could be in any position that door could be to see if there may have been a bullet?

A. We certainly looked for bullets along a logical path, had that door been closed 45 degrees or completely closed. And we didn't find another bullet hole. This was the best bullet hole that aligned with it.

Q. And it was your expert opinion that that bullet passed through that door while it was open?

A. Yes, it is.

Q. I just want to dig down a little bit. Because to me, if the door was open and the bullet passes through an open closet, it is just as reasonable that it could be closed and it passed while it's closed and somebody is in there. How do you refute that?

A. Looking at the physical morphology of the bullet hole in that door, physically being there and examining it and having experience in bullet holes, both through wooden objects and other objects, in my expert opinion, I was looking at, for lack of a better word, an entrance wound or an entrance to the interior portion of the door. And I was looking at what appeared to me a clear exit from the exterior portion of that door. Taken into account with aligning that with the bullet hole from the wall where a bullet was recovered, that was the best description of the trajectory of that round and where it impacted. There wasn't another multiple impact. There wasn't another bullet hole within the closet to indicate the closet door was closed at the time. That was the best answer for where that bullet had traveled.

Q. What about on the west wall if the door was closed and the bullet passed through the door as it was closed? Did you do a trajectory analysis on that west wall to see if there was any impacts back there?

A. Yes. We actually do have an impact on the west wall.

But it wasn't in a position that aligned with this bullet hole.

Q. Did you try to align that bullet hole?

A. Yes, sir. We did the same thing with a bright light. We looked for logical areas where the bullet could have gone through or could have passed.

Q. Now, one and two -- sorry. Man DNA identifications number two and three where Jasib and Kahtan were portrayed on page 7, 8, and 11 of Investigative Exhibit 70. You have their positioning right inside the door way of the room -- well, one inside the doorway and one slightly behind that other door?

A. Yes, sir. I have man two almost within the threshold of the doorway. And I have man three slightly behind him and towards the north wall.

Q. With regards to any of those two men, could you forensically determine whether or not they had AK-47s?

A. No, I could not.

Q. Did you forensically determine whether any four of these men had AK-47s?

A. No, I could not.

Q. Now, earlier in your testimony, when you said you first got to the death scene examination, you looked about where the likely position of the Marines when they entered that room would have been. Did you look for any bullet defects or any other type of defects in their route into that room?

A. Yes, we looked for those. If you mean in the hallway and in the rooms leading up to this room, yes, we did look for those. I specifically would have looked in the hallway area, and the other teams would have looked as they came through the house.

Q. What I'm asking is you had an idea of how the Marines entered that room?

A. Yes, I did.

Q. And you had an idea of the path they took into that room?

A. Yes.

Q. Did you look for any evidence in that path that could have led you to believe that maybe they were taking fire or anything like that?

A. I did not see any evidence of gunfire outside of this room.

Q. I want to get to your report where you have your conclusions. That will be your 1 September report as reflected in Investigative Exhibit 56.

A. Yes, sir.

Q. What I want to ask is you have some conclusions inhere -- you have what is called, Analysis of Critical Statement Segments. Explain to the IO what an Analysis of Critical Statement Segment is.

A. Our investigative reports or the work that we do is initially an investigative tool. It is to provide information to the investigators that might direct interviews, interrogations, the direction the investigation is taking. One of the things we do after we analyze the physical evidence is we can be presented with statements or witnesses' account of versions of the events. And we look at those for positions which we call critical statement segments where it may be – that part of the statement may be supported by forensic evidence. Or that point where the statements of one witness and statements of another are so diametrically opposed that forensic evidence may support one statement over the other and move in one direction or another. So analysis of critical statement segments is taking those statement segments we have by participants or witnesses to the event and determining, are those statement segments forensically supported by the evidence that we see.

Q. Okay. On page 4 of 9 of Exhibit 56, paragraph 6, you have conclusions.

A. Yes.

Q. In your conclusions, you state that the recounting of events by the Marines is neither entirely accurate nor entirely false. Can you please explain that?

A. Yes. In the totality of the forensic reconstruction and in the analysis of the critical statement segments where we have statements from the Marines as to what their actions were that day within the house -- I don't know how they entered the house. I don't know specifically what rooms they went in. But I know when a shot was fired, they were positioned in the hallway outside of this room, and that they shot a man that was within the threshold of the doorway. That supports the Marines' statement. I know that they then encountered a second man that was behind him and slightly to the side. That supports the Marines' statements.

Part of the statement after that though is that the other two individuals in the room were moving towards their fallen comrades, I believe was the word used. Of course in the Marine's statements, there is an assumption on the AK-47s being within that room in the hands of the first two. So in their statement that the other two individuals in the room were moving towards their fallen comrades, which is when they were engaged with gunfire, that certainly doesn't seem to be supported. One seems to be crouched down behind an open closet door. And he is shot with the 9-millimeter.

Within the critical statement segments, the Marine then says, I was out of ammunition with the 9-millimeter. I stepped aside. And the man armed with the M-16 came into the room. That certainly matches, but then he would have shot an individual not moving towards his, but within a closed closet.

So when we do a reconstruction of events, what we see for the best explanation is the first two individuals are shot in the room, the Marine armed with the 9-millimeter makes entry into the room, he shoots the first one within the threshold, steps in peripherally, sees one almost behind the door, turns and shoots him.

We have two other gunshots in the room, one impacts by the head of the bed, and one impacts through both curtains and then out the window. That would indicate that there was a target in that part of the room that they were attempting to engage. The man is shot behind the open closet door. It is down there.

At that point, out of ammunition, stepping aside, perhaps the second Marine when entering the room was able to see the man in the room -- that those other shots were directed towards -- get into the closet and close the door. So then he closes that distance and shoots through the door with the M-16.

So that is why we say specifically that the recounting of the events by the Marines is neither entirely accurate nor entirely false. It would not appear as if they saw the two other men in the room moving towards their comrades at the time they were shot. One was behind an open closet door and the other was within a closet at the time he was shot.

Q. You use an interesting phrase in your summary. You said "best explanation." What do you mean by that?

A. If I may for a moment, I would like to describe a forensic reconstruction. There is a time line of the event. There was a beginning, and there was an end.

And there are a variety of things that happened between those two. When we process a death scene or a crime scene, I like to look at it as you are walking along that time line and taking Polaroid pictures of various parts of it, you certainly don't have the entire thing unless the incident was videotaped while it was happening.

Through forensic reconstruction, we then put those isolated pictures in the order that makes the best sense. The more pictures we have, the better picture that we have while we're doing it. In this case, we have far fewer pictures. We were there four months later. The photographs were not documented for law enforcement purposes. When I say the best explanation, from the evidence that I was presented, from the evidence that I recovered, from the statement segments that I read, that is the best explanation for the events that occurred within the room that day.

Q. Special Agent Maloney, have you had an opportunity to see the Iraqis version of the events with regards to their videotaped interviews or their written interviews?

A. I have had a synopsis of the interviews from the beginning. I have not reviewed in detail their videotaped interviews. But I am aware of their version of the events, I believe.

Q. Can you forensically determine if their version is true or false?

A. No.

IO: Your witness.

CC[Mr. Meyers]: Thank you.

CROSS-EXAMINATION

Questions by Mr. Myers:

Q. If I could first cut to the chase, and then I will have to circle the wagons back to talk it in more detail. Just a few minutes ago -- forgetting the AK-47, that is another matter that the IO is going to take up. We know you can't tell whether there were AK-47s there. When Lance Corporal Justin Sharratt says, An insurgent popped back out from behind the door, I shot him once in the head and he fell backwards, that is the threshold of the door?

A. Yes, it is.

Q. You agree?

A. That is forensically supported, yes. I can't speak to the popped back out. But he shot a man in the threshold of the door, and the man fell backwards. Yes.

Q. Forgetting the AK-47?

A. Yes.

Q. And then when he says, as he has from the beginning, As I stepped into the doorway, to my front was another insurgent with his AK-47 waist level -- forget the AK-47 -- I immediately fire at his chest and head firing several times with my pistol. That is consistent with your analysis?

A. That is consistent with my analysis, yes, sir.

Q. So in those two deaths, forgetting for a moment the AK-47, the forensic evidence is consistent with the statements of Lance Corporal Justin Sharratt?

A. Yes, it is.

Q. So in his case, we only have one other person left to talk about, don't we?

A. That is correct.

Q. And that's the gentleman crouched behind the door. Let me propose this hypothetical to you -- and we're going to look at this in more detail.

A. Certainly.

Q. After firing at the second man, coming through the doorway with a body here, he steps, he turns, he fires, and then your forensics show him moving to the left with at least one round into the wall and one round into the window as he moves to the left?

A. I don't know that they were 9-millimeter rounds in the wall and windows. But, yes, I have gunshot in that pattern. Yes, sir.

Q. And they could have been from him?

A. They could have been from him.

Q. Does that not suggest to you, sir, that there was a person moving, generally speaking, toward him?

A. I am going to be a little more specific, if I may. It suggests to me someone move from east to west on the south side of the bed --

Q. And in the heat of battle, with tunnel vision, with all things going on in a darkened room -- and we will get into that -- is there any reason to believe that this did not look like a person moving toward him?

A. Towards him? It certainly could appear that way.

Q. And isn't it possible, knowing that these rounds are being fired fatally right to left, that this man, rather than hunker down and crouching, dove for the corner and was hit?

A. That is a possibility.

Q. Yes, it is. And that would make Lance Corporal Sharratt's story, from the first day the man was ever questioned, exactly accurate, except no one can seem to find the AK-47s. Isn't that true?

A. I am not aware of the AK-47s being recovered. That's correct.

Q. Do you know -- and now I must go into some detail here to make a record -- do you know how many rounds were fired in that room that day?

A. No, I do not.

Q. So that the number of rounds that you recovered and the bullet holes you have do not define the universe of discharged ammunition in your mind?

A. No, they do not.

Q. Some of these people could have had rounds to the torso that never exited the body, some rounds could have exited the body and picked up before you got there several months later, multiple explanations?

A. Certainly possible.

Q. And your analysis is an extraordinarily highly educated guess, but there is no certainty that your analysis is 100% correct?

A. I would certainly agree with that. I never use certainty. I use words like 'likely," "probable," or" best explanation," yes.

Q. Don't misinterpret what I am about to ask you. It is not meant to belittle. But even after all the peer review, all the nameless guys out there who know everything, after all that stuff, you still got the guy who had the busted up finger not writing the report. Is that correct?

A. I am not certain. You will have to reword that. Sorry.

Q. I would like to show you what's been previously marked as Investigative Exhibit 61. That is the second fellow who was shot. Right?

A. Yes, it is.

Q. Now, at any time when you folks looked at that picture and you saw his hand with the middle finger of that hand apparently mutilated, maybe not mutilated, did you reach any forensic conclusions with respect to causation with respect to that injury?

A. I wouldn't use the word "conclusion." But when I saw this photograph and when I saw what could be -- what I saw what appeared to be a defect to the middle finger, it raised forensic possibilities that I had wished to explore, yes.

Q. What were some of those forensic possibilities?

A. If it was in fact a gunshot injury, then could I position his hand based upon bullet impacts in the room or entrance wounds he had already received would have been one of my interests.

Q. I am going to retrieve that.

A. Certainly.

Q. Was there anything kinetic in that room which could have done this to a finger to your knowledge other than bullets?

A. Are you asking me to assume that it's an injury, because that's not necessarily what the pathologist --

Q. I am asking you the question without making any presumption. I am just asking you. To your knowledge, was there anything else kinetic in that room which could have occasioned an injury, presuming that it is an injury?

A. If we presume that is an injury, it would seem a likely source would be gunshot.

Q. Now I am going to show you what's previously been marked as Enclosure 6, photograph 15, page 35 of 39 of Investigative Exhibit 71. You are telling us that that young fellow who was in the closet was in the closet where the lock is?

A. Yes.

Q. Did you read any reports saying that the grandfather kept a weapon in a locked closet?

A. I don't specifically know that I read it in a report. But I was aware of information that a weapon was stored in a closet in that room.

Q. Anybody ask when that lock was put on that closet?

A. I don't know the answer to that question.

Q. I am going to retrieve that from you.

Did you find it coincidental that the closet with the lock on it -- whether it was locked at the time or not we will never know -- that the closet with the lock on it is the one the man sought refuge in?

A. I found it interesting that he sought refuge in a closet. I am not sure how to answer that.

Q. I would like, if I could, to spend a little time with you --

CC[Mr. Meyers]: Do you mind if the witness comes over here so he can mark these charts?

IO: You are going have him mark these charts?

CC[Mr. Meyers]: I was thinking about having him mark the charts. On the other hand, I could rethink that position.

IO: I don't mind if he comes over there. I am concerned about how I am going to record this chart.

CC[Mr. Meyers]: I am going introduce it into evidence once he finishes doing it. I am going to mark it for identification and then have him mark it and then introduce it into evidence.

IO: Are you going to take a picture of it for me, or am I expected to carry that around?

CC[Mr. Meyers]: I thought the good people at NCIS can take a picture.

IO: As long as we get a picture, I'll let you mark on it.

CC[Mr. Meyers]: That's what we'll do. We just thought it would be helpful for you --

IO: I don't have a problem with that portion. I was just concerned of how we were going to memorialize it.

Questions by Mr. Myers continued:

Q. This is the chart of that room, is it not? We're going to mark it for identification as 101.

A. That is the chart I prepared of the room, yes.

Q. Here is the entry door -- and I am pointing to the section marked "door." Is the door here?

A. Yes.

Q. And what wall is that?

A. That would be the east wall.

Q. The entryway is here. Just for convenience, these flattened out areas that go beyond this square are actually the wall tilting down. Is that it?

A. Think of a box unfolded. So the ceiling is not displayed, but the four walls are.

Q. The ceiling is not displayed, but the four walls are?

A. Yes.

Q. And I notice that you have blood spatter markings in various places.

A. Blood spatter or what appears to be biological tissue, yes.

Q. Now, for the individual who was in the doorway, were you able to identify blood spatter associated with him?

A. Yes.

Q. Could you show us where?

A. I hope you are not assuming artistic skills that you have never seen with me. I will do the best that I can.

Q. Well, if you are anything like me, it will be a disaster. But that's all right?

A. If we're referring to the man lying here that we've identified as man two --

Q. Man two, the first person shot.

A. This chart doesn't show the fold out of the doorway. It shows the closet. But there would be a second stain, which is actually on the -- probably drawing it wrong, but on the interfacing of the threshold of the door, there would be an additional stain that is not represented on this particular chart.

Q. And this is man number two?

A. The man identified DNA-wise as man two. Correct.

Q. And thank you so much. This individual you say was shot in the doorway because you know what?

A. Because his blood -- and this is where I wish that that particular thing was represented on this -- his blood is both on the inside wall of the room adjacent to the door, but this door threshold is deep. It is not narrow walls there. The walls are stone built. So his blood is also on -- if you were standing within the threshold of the door and looked directly to your right -- so you are looking at the expanse of the actual doorway itself -- blood is also in that area, on that inter-surface. So that moves him up. He has to be close enough to the threshold that his blood can strike both the wall to the interior portion of it and also strike what would be almost a 90-degree angle to him at that time, the inside frame of the door.

Q. And that's man number two. I would like to look at man number three. Can you tell me generally where man number three's blood spatter is?

A. Yes, I can. It is within a regularly shaped pattern right there, yes.

Q. And that's man number three's blood spatter?

A. There is blood spatter from man number three within that, yes.

Q. Is that why you can conclude that he was fired upon while standing slightly behind this door?

A. Slightly behind or just at the door, yes. There is directionality about blood spatter, and it seems consistent.

Q. So you are comfortable with both of those analyses?

A. I am comfortable with both of those analyses.

Q. And you confirmed them with DNA testing?

A. Yes.

Q. Now we look at this third fellow. You got blood spatter from him, I presume, in this region?

A. You are referring to man four now?

Q. Yes.

A. Man number four, I believe there is a bloodstain pattern marked 29. Is there?

Q. There is. And I am going to mark that number four.

A. But that is not DNA confirmed. That is a pattern consistent with blood spatter from a gunshot.

Q. But as you explained to us already, there are four bodies in the room. You confirmed the DNA of three. Therefore, this person must be four. Correct?

A. Correct.

Q. So we got blood spatter analysis that is consistent with the locations of death. Now we know, however, from the pictures, that this gentleman down here at four wasn't against that wall when the pictures were taken.

A. That is correct.

Q. So he was clearly moved?

A. Correct.

Q. And we know that this individual was not up against the wall behind the doorway. This is individual number three. So he was clearly moved?

A. Clearly moved.

Q. I am going to move now to 102. 102 reveals gunfire direction, does it not?

A. It reveals, yes.

Q. Gunfire direction that you were able to ascertain. Correct?

A. Correct.

Q. What I am going to do is this: I am going to mark those areas where you concluded that that rounds had been fired without having to get you out of your witness chair. Now, you have a round here against the west wall that I am going to mark as one in green. Is that correct?

A. That is correct.

Q. And then moving down from there, I am going to draw a narrow. You have a second round that went through the window, and you were able to identify its direction because of the forensics of the window. Is that correct?

A. Because it also passed through both the right and left curtain panel before passing through the window. So we were able to line up a trajectory.

Q. So you had two points making a line?

A. Three points.

Q. Three points making a line. That's even better. But you can still make a line?

A. Certainly was.

Q. So this suggests, as one suggestion, that this round was fired, the second round was fired that went through the window. Let me ask you now about this window. Is this the only view to the outside that exists in that room?

A. Yes. The doorway and the window are the only two. There is not another window.

Q. And this doorway does not go to the outside --

A. No, it goes to a hallway.

Q. But the only area exposed to sunlight is here?

A. Correct.

Q. And what did you discover in your analysis of this gunshot about the curtains on this window?

A. The curtains would have appeared to be closed at the time the shot went through them.

Q. Because there couldn't have been any other result with one bullet and the fact it went through both curtains?

A. Particularly since it went through near the edge of the two curtains as they touch each other, yes.

Q. So not only do we have a very small room, but we have a room that is somewhat darkened. You were in the room. How would you characterize it when the curtains are closed?

A. Somewhat darkened.

Q. Perfect words. I thought so as well. Now the next rounds we find are where? On the south wall?

A. We document those on the south wall.

Q. How many?

A. Two.

Q. So this is round three and round four for my purposes and none other in this drawing?

A. Correct.

Q. And one of these rounds is the fatal round?

A. Yes.

Q. Is that correct?

A. That's correct.

Q. And there is no indication of another hit, so one must have also missed?

A. Are you referring to his body?

Q. I am referring to the round here. Was there any indication of a second round hitting that body?

A. Not that we see, no.

Q. Let's talk now about this closet. If this gentleman labeled here with three and four was shot from the direction that you indicated, which is a straight line running from north to south through the closet door. Correct?

A. Correct.

Q. Is it not more probable that this individual was shot before the fourth individual entered the closet and closed the door?

A. That is certainly my belief, yes.

Q. So the room was dynamic. We had perhaps this man going in this direction, finally being fatally wounded here. But this individual, Marwan, who you called man number one --

A. Correct.

Q. -- couldn't have been inside that closet until after this shot was fired. Is that your thesis?

A. That is the best description, yes.

IO: I am going to interrupt you for a minute. The man identified as -- if you ever read this back, no would understand this and this. You have number four moving behind the closet before man identified as man number one is going in the closet is your best thesis?

WIT[SA Maloney]: Yes -- I am sorry. I just want to make sure I just said "yes" to the right thing. Man four moving behind the open closet before man one moves into the closet. That is correct.

IO: We can't use the word this.

CC[Mr. Meyers]: I am terribly sorry. That is an amateur mistake.

Questions by Mr. Myers continued:

Q. Then when all of this is going on, you read Lance Corporal Sharratt's statement that said, he then yelled, I am out?

A. Yes, I am aware he ran out of ammunition, yes.

Q. That is completely consistent, is it not, with Sergeant Wuterich then picking up the ball, entering the room, and using deadly force against man number one?

A. Yes, it is.

Q. One last small point. When you were there, did you go up to what had been identified as an OP to see if houses three and four could be seen from the OP?

A. I personally did not. It was done by the investigative team I was with. And the results were reported back to me.

Q. And what were the results reported back to you?

A. The results were that from the described position on the roof of the OP, you could see what they said they saw, which was the small alley way between the two buildings in the area directly in front of them.

CC[Mr. Meyers]: I have no further questions.

EXAMINATION BY THE INVESTIGATING OFFICER

Questions by the investigating officer:

Q. Do you still have your copy of Investigative Exhibit 70, which is your forensic analysis report up there?

A. Yes, sir, I do.

Q. I am not trying to be nitpicky. I think there is a typo. I just want to make sure it is corrected. If you look on page 11 of that exhibit in paragraph 10C. In your conclusions, you state the suspect Tatum said that he fired all the 9-millimeter rounds in that room.

A. I am trying to get to the paragraph you are on.

Q. 10C on page 11 of 11.

A. Yes, I am there.

Q. Very last portion where it says "X/Tatum."

A. Yes.

Q. That seems to indicate to me that Tatum provided a statement that he fired 9-millimeter rounds in that room. I think that should be Sharratt.

A. Absolutely, sir.

Q. I just want to make sure. I figured it was a typo.

A. I believe there is probably one other in the summary where it says "defiantly" instead of "definitely."

Q. That one wasn't as important as that one.

A. Thank you very much for that.

Q. So you have no statements from Tatum talking about what happened inside that room?

A. Absolutely not. That is an administrative error. It should have referred to Sharratt.

Q. You answered a question by government counsel that forensically you could not support the version of events that were relayed by the Iraqis in the interview. It seemed to me that the interviews from the Iraqis that I have read so far and been exposed to have no discussion of what occurred in the room. Is that why you say you can't verify what happened in there?

A. Absolutely, sir. The Iraqi's version of the statement ends at the front door of the house. And there is no forensic evidence that we have outside. All we have is what's inside the bedroom. And they weren't in a position to see what happened in there from what I read of the statements.

Q. Now was it just happenstance or is there a reason why the numbering of the individuals is different than the sequence in which you believe they may have been shot?

A. Yes. The numbering of the individuals is based upon the USACIL number that they assign to a specific DNA profile.

Q. So there is no correlation to the sequence in which they may have been shot?

A. No, sir. He is referred to as man one in the closet because that's the DNA profile that came from the back of the closet and from the bullet that was lodged in the wall.

Q. I have seen pictures of the closet, but I have no dimensions of the size of that man. Could that individual man have stood in that closet if he had wanted to?

A. And received the injury that he received?

Q. No, just stand in it. When I look at it, it looks like it's more of a wardrobe than a closet.

A. Sir, I would have to know his height. It is not inconceivable. It is not something that I looked at specifically, could he stand completely upright or would he have to hunch down. As you can see from the picture we discussed earlier, it is a tall wardrobe.

Q. The picture doesn't describe for me where the floor is. Is it a floor-to-ceiling wardrobe?

A. The floor -- there is actually a wooden floor that would be an inch, an inch and a half, two inches above the floor itself. And there was no interior shelf that we see which would preclude someone from doing that.

Q. That's why I don't have that perspective. I didn't know. So with reasonable certainty, a person could stand at least more upright than crouching?

A. A person could.

IO: Counsel, you may have dimensions of these bodies in here. I just haven't found them. That's all.

CC[Mr. Meyers]: Just checking the death certificate, I don't know if there was a height indication or not, Your Honor. That would be the only place that that would show up.

TC[Maj Erickson]: There is no dimensions on the bodies.

CC[Mr. Meyers]: Just sex, male. There is nothing to --

IO: It is not important for me to know. I was just curious if this individual was short or tall in relation to the closet.

WIT[SA Maloney]: We had an individual on our team that certainly could have stepped into the closet.

Questions by the investigating officer continued:

Q. And his size was?

A. I am six foot two, and he comes up to about my shoulder perhaps.

Q. At least 5'8" or so, 5'10"?

A. I wouldn't have him that tall, sir.

Q. All right. And from all the pictures that I have seen, and you reviewed in your forensic analysis, were each of these men shot in the front part of their body, either to the face or to their -- I am trying to find out ifyou found any of these people shot in the back or any of these injuries indicate to you that maybe they were shot in the back.

A. I am going to review as I answer on that one, sir. Let me find the right report.

If you don't mind, I am going to go through one man at a time. Would that be all right just so I can keep track on this?

Man known as Kahtan, no indication that he was shot from the back. Man referred to as Jasib, no indication that he was shot to the back. The man named Jamal, no indication that he was shot in the back. Now a qualifier, if I may: All the photographs that we used to do this, the men were lying on their backs. So their back was not visible to us.

Q. The last question is earlier in this hearing, I heard an audio recording of some discord between Special Agent Mannle and I don't know who it was. But it was indicated to me that it was one of the forensic analysts, either yourself or your partner, where aversion of what the Iraqis were saying occurred was being told to whoever was doing the forensic analysis. I heard the person on that tape. I apologize if it's you.

A. I believe it was me, sir.

Q. Your responded back that that does not seem to comport with what you were finding in the room, and something about the arrangement of what you are finding in the room initially showed that the Marines were not in control of the room.

A. I would like to hear that before I stated --

Q. I didn't hear the whole thing. But that is what's being related to me was the gist of it. We can take a break. And you can hear that so you can explain to me what was happening.

A. Would someone be able to play that to me?

Q. We have it, and we can. Why don't we take a break. I will allow you to hear it. It is not the easiest to hear. I didn't quote it exactly. But I want to know what's going on.

A. If it is so important, I would like to hear it exactly. Thank you.

IO: We will take a brief recess.

The Article 32 investigation recessed at 1438, 14 June 2007.

The Article 32 investigation was called to order at 1500, 14 June 2007..

IO: The hearing will come to order.

Questions by the investigating officer continued:

Q. During the break, did you have an opportunity to listen to Investigative Exhibit 89, the audio recording?

A. Yes, I have. And I specifically recall the conversation from it.

Q. Tell me what it is you are describing and relating in that conversation with Agent Mannle.

A. What is it that I am describing? I am describing the biological evidence which is within the closet unit that we've talked about earlier, the large amount of biological material, blood staining and everything, and a preliminary indication that it appears as if someone has been shot in that closet -- and basically shot through the head in that closet.

Q. Did you have any discussions concerning whether that was in contradictory to what Agent Mannle was learning about the possible incident?

A. I have to put it into the context.

Q. That's what I am asking you.

A. Yes. When we went there, our information was from a variety of sources. And one of the pieces of information -- I believe it actually came from media reporting -- was that the Iraqis had stated that the men had been marched into a closet and executed in a closet.

That was preliminary information we had.

I was reporting her the size of the closet, that certainly four people weren't in there, that that didn't happen. I wanted her to explore in the rest of her interview who was moved out of the closet, was a body moved out of there. We hadn't done the analysis yet.

It appeared to me that someone was shot in there. I wanted to get from the first woman -- she was describing the woman that came in to first see the bodies. I wanted her to ask her, did you physically move someone out of that closet.

Q. Okay.

A. So there wasn't really discord. It was more, I wanted to give her an area of focus that would help me later forensically within her interviews.

Q. And you comment that it didn't seem to be in control and what you had heard is in relation to media reports about more than one person in the closet being shot?

A. I don't believe -- and I can't be certain on this -- I am having difficulty at this time remembering did I have the specific information that the Marines stated that they were moving towards their comrades at the time -- that the other two individuals were moving towards their comrades at the time they were shot. When I looked at it, that was the purpose of my comments was to drilldown on that issue.

IO: Counsel for either side have any further questions in light of mine?

TC[Maj Erickson]: Yes, sir. Just one.

REDIRECT EXAMINATION

Questions by the prosecution, Major Erickson:

Q. One more administrative correction there, Mr. Maloney. It is in Investigative Exhibit 70, page 11. We will just correct it real quick while we're on the record here. Investigative Exhibit 11 of 11. I got it underlined in red there, the final paragraph.

A. Yes.

Q. That needs to be corrected to reflect what?

A. Yes. I am on page 11 of 18.

Q. 11 of 11. It is mis-marked.

A. Sorry, 11 of 11, subparagraph marked C. We already discussed "Tatum" to "Sharratt" as the correction. And paragraph D -- this was my rough page -- "defiantly" should be "definitely." And under conclusions 11, it says "the events surrounding the death of the eight Iraqis in house four," that should read "four Iraqis in house four." Apparently, we should add a technical writer to our peer review.

TC[Maj Erickson]: Thank you. That's all the government has, sir.

IO: Mr. Myers?

CC[Mr. Meyers]: Nothing further, thank you.

IO: Special Agent Maloney, are you scheduled to deploy out of the Okinawa office any time soon?

WIT[SA Maloney]: No. I have no scheduled deployments. I am under the understanding that I will be returning to Pendleton several times this summer.

IO: So you believe you will be available if there is any further proceedings?

WIT[SA Maloney]: I will be available in the local area until Sunday. That's when my flight is scheduled to depart. So I will be available all day tomorrow and Saturday.

IO: In the future, you don't see anything to interfere with your availability in further proceedings?

WIT[SA Maloney]: Absolutely not.

The witness was excused.

CC[Mr. Culp]: By agreement, I think we will terminate for the day. We do have the prospect for the witness tomorrow. We can begin at 0800.

IO: We will recess until 0800. We can take anymore witnesses. I will give counsel the opportunity to give oral summation. I would like you to limit to 15 minutes. If you beg for more time, I will give you an additional five or ten minutes. But I don't want a lengthy oral recitation.

I am going to keep the 32 open until Monday. I will allow written comments to be submitted to me by close of business on Monday. That's assuming that we finish up tomorrow. Have a good evening. See you tomorrow.

The Article 32 investigation recessed at 1506, 14 June 2007.

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