Article 32 -Testimony


LCpl. Stephen B. Tatum
Article 32 Summary

Key testimony and arguments

Day One / Monday, July 16

From opening statements:

Jack B. Zimmerman

Civilian defense attorney.

“He was taught that deadly force is the proper response to a threat…We would have chaos on the battlefield if every lance corporal questioned every order given by a staff sergeant….He did what his country trained him to do. Now he’s facing murder charges and a life sentence.”

[Sources: Associated Press, San Diego Union Tribune

Lt. Col. Paul Atterbury

Lead prosecutor.

  • Gave the court copies of rules-of-engagement cards that were supposed to have been distributed to Tatum’s unit. The cards state that Marines need to positively identify targets as having a hostile intent before using deadly force.

  • “Marines have to be held accountable,” Lt Col Atterbury said.

[Sources: San Diego Union Tribune


SSgt. Justin Laughner

HET asset with 2nd CI HUMINT Co. The staff sergeant was one of two HET assets assigned to Kilo Co. on November 19, 2005.

  • Testified that he found shell casings in the entrance to one home that likely came from Iraqis’ AK-47 rifles mixed with some others from U.S. troops’ M-16s.

[Source: San Diego Union Tribune

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Day Two / Tuesday,July 17

LCpl Humberto Manuel Mendoza

Uncharged member of Kilo Company, took part in action in Haditha. Mendoza is not a United States citizen and would have been deported if convicted of a crime. He took immunity on December 18, 2006 in exchange for helping the prosecution build a case.

Original statements to investigators

  • In Haditha, he and several other Marines, including Tatum, went to a house soon after the blast. Mendoza said he shot a man in a room who was standing by a closet. “He opened the closet door with his left hand and was reaching inside with his right hand while looking at me….I shot him several times. I never said anything to him.”

  • Mendoza said he shot another man through a glass door in a different house.

  • “I was following my training that all individuals in a hostile house are to be shot,” Mendoza told investigators.


  • Mendoza said that he did not feel threatened in the house, even though he killed two men as the squad moved through the area clearing homes.

  • In the second house they entered, Mendoza said, he stayed in the kitchen while the rest of the team moved inside. After several minutes of quiet, Mendoza said he ventured down a hall to a room with a closed door. (Mendoza pointed at a large diagram of an Iraqi house to show his movements.)

  • Mendoza claims he opened the door and found women and children cowering. They were alive, he said, and scared. And they were looking at him.

  • Mendoza claims he closed the door and told Tatum what he had seen. “I told him that there’s womens and kids in that room,” Mendoza (whose native language is not English) testified. According to Mendoza, Tatum replied, “Well, shoot them.”

  • “Was he joking?” Lt Col Atterbury asked. “No sir, he was very serious,” Mendoza replied.

  • Mendoza claimed, “I replied, ‘There’s just womens and kids. There’s no males, no threat, no hostile situation.’ “

  • Mendoza said that when he refused the order, Lance Cpl. Stephen Tatum brushed past him and headed into the room himself. “Next thing I know, I hear a lot of noise in the house,” Mendoza said.

  • Lt Col Atterbury asked Mendoza whether he had asked Tatum what happened. “I just didn’t want to ask him,” Mendoza replied. “Why didn’t you want to ask?” Atterbury said. “I dunno, sir, I just …” Mendoza said, not finishing his thought, but sitting silently and looking away.

  • Mendoza returned to the home hours later as part of a team assigned to collect bodies. “I found all of the womens and childrens dead,” Mendoza testified. “They got multiple wounds everywhere.”

LCpl Tatum’s attorneys flatly dispute the claims from Mendoza, who has acknowledged on the stand that he initially lied to investigators about the incident and did not report the conversation with Tatum for more than a year. The defendant’s lawyers also point to a polygraph test their client passed. Mendoza — who admitted to killing two unarmed men during the melee — was granted immunity from prosecution for his testimony.

Jack B. Zimmerman told the court that a 13-year-old survivor in the back room said the shooter was shorter than she was. Mendoza is 5 feet 4 inches tall, while Tatum is 6-foot-2. Zimmerman asked why Mendoza had not offered this version of events when initially questioned by investigators. He suggested that Mendoza, a Venezuelan citizen, was worried that he could lose the chance to become a U.S. citizen.

According to a report by the Naval Criminal Investigative Service dated May 17, 2006, Tatum told investigators that he shot women and children because “women and kids can hurt you too.” He went on to say he later felt remorseful about the incident.

  • In cross-examination, Zimmerman brought up a polygraph test Mendoza failed after changing his account of events.

  • Mendoza replied he was telling the truth, and freely admitted lying initially to protect his fellow Marines.

  • “You’d lie to protect your fellow Marines, but not to help yourself?” Zimmerman asked. “Yes,” Mendoza said.

Mendoza, a Venezuelan citizen, has an application for U.S. citizenship pending. That application would be denied if he were charged with any crime, he acknowledged. But he said that he had not told any government lawyers about the content of his testimony before he was granted immunity in December 2006, shortly before charges were filed against Tatum and other Marines.

[Source:Associated Press, North County Times, Washington Post


Sgt. Sanick P. Dela Cruz

Uncharged member of Kilo Company, took part in action in Haditha.

  • Testified that, in January 2006, Tatum poked fun at a squadmate who asked permission before shooting and said he thought the war should be fought the way it was in Biblical scriptures, “where you just go in the city and kill every living thing.”

  • Claimed that, in Haditha, Tatum entered an Iraqi home near the bomb site where Marines had found more than $5,000 in U.S. currency and suggested that the money should be sent to the family of their fallen comrade to pay for a funeral. “I think he was serious,” Dela Cruz said. Tatum did not take the money in the end.

  • Testified that LCpl Tatum left a telling signature on a gift to the parents of the Marine killed by the IED. All the squad members signed a pack the young man had owned, he said. Near Tatum’s signature were 24 hatch marks — the number of civilians killed at Haditha — and an inscription reading, “This one’s for you.” Zimmerman suggested that the inscription referred to a rosary Tatum attached to the pack.
[Source: Associated Press, Washington Post


Day Three / Wednesday, July 18

Naval Criminal Investigative Service Special Agent Brian Brittingham

Lead agent in the Tatum case.

  • Testified that the first interrogation of LCpl Tatum lasted 12 hours. It took place in the subterranean dungeon of Haditha dam–a foul, dark, concrete room that stinks of urine and is usually reserved for interviews with insurgents. Brittingham claimed it was the only room the Marines made available to them.

  • Brittingham also said he interviewed Iraqi children who survived in houses one and two: Eman Waleen Al Hameed, Safa Younis, and Abid Al Rahman Waleed Al Hameed.

[Sources: North County Times and a hearing observer for Defend Our Marines]


Naval Criminal Investigative Service Special Agent Matthew Marshall

Interrogated LCpl Tatum in March 2006

  • Testified that LCpl Tatum told NCIS that he saw a child — young, dark-haired, wearing a white T-shirt and standing on a bed in his Haditha home — and pulled the trigger. According to Marshall, “There was a pause, a little hesitation, and then he said, ‘That’s the room where I saw the kid that I shot. Knowing it was a kid, I shot him anyway.”

  • Marshall recounted what Tatum told the investigative service about the second home he cleared during the Haditha incident. He and three other Marines followed a fleeing person from the first home to the second. There, they shot a man at a door and lobbed a grenade into a washroom.

  • According to Marshall, Tatum heard M-16 rifle fire coming from a room that Staff Sgt. Frank Wuterich had just entered. Then Tatum rushed to Wuterich’s aid. “He rolled into the room and began picking out targets. He ID’d them as women and children,” Marshall testified.

  • “I asked if he shot them, and he said yes. He was very emotional about it, very sorry to the point that he cried.” 

  • In a later interview, Marshall testified, Tatum again told him he knew the people were women and children. “He stated that women and children can hurt you, too, as justification for shooting them,” Marshall said.

  • Marshall claims the reports he generated after questioning Tatum were “factual representations” of what was said. But none of the interrogations were recorded.

  • Marshall also acknowledged that Tatum had told him at least once that he had “unknowingly” shot women and children.

LCpl Tatum’s attorneys dispute everything that Marshall claims Tatum told him. Tatum never swore to or signed the statements that Marshall said he made. They also argue that the statements attributed to their client are inadmissible in court.

  • They criticized the agency’s agents for failing to make audio or video recordings of any of the interviews.

  • The first session between the agents and Tatum took place May 9, 2006. Defense lawyers Jack Zimmerman and Kyle Sampson said the interview should have stopped immediately after Tatum asked for an attorney. Tatum made the request after becoming angry about an agent’s insult. That agent, a former Marine, had said the actions of Tatum’s platoon in Haditha made him feel ashamed. (An impartial investigation? Throughout these hearings, the NCIS has shown that it predetermined the guilt of the Marines.)

  • After the agent apologized, Tatum signed a statement agreeing to continue the interview without a lawyer.

[Sources: North County Times and a hearing observer for Defend Our Marines]


Day Four / Thursday, July 19

Lt. Col. Elizabeth Rouse

Forensic pathologist and medical examiner asked by the prosecutor to determine how the victims had died

  • The pictures provided to her were far less than ideal for such analysis, with the victims still dressed and their wounds not always visible.

  • “The photographs were all that was available,” Rouse testified. Families of the dead refused to let investigators exhume the bodies.

  • Many of the photos Rouse reviewed were taken by Marines documenting the battle scene and taking pictures of the faces of the dead to determine if any were known or suspected insurgents. The photos were not taken to document wounds of the victims, nor were they done for a possible criminal investigation.

  • Acknowledged conflicts between photographic “evidence” and Iraqi pathology reports regarding cause of deaths.

[Source: North County Times and a hearing observer for Defend Our Marines]


Naval Criminal Investigative Service Special Agent Tom Brady

Examined houses one and two in Haditha as part of a process team that arrived on March 26, 2006.

  • Said he pieced together what may have happened in the first of four homes U.S. troops cleared after a roadside bomb killed a Marine.

  • Testified that a trip to the home four months after the attack did not yield any physical evidence. The home had been repaired and repainted. But saw damage consistent with a fragmentation device.

  • Brady claimed it was possible that a 4-year-old boy may have been deliberately executed by a killer standing over him while the child cowered, based on the location of the boy’s wounds. But Tatum’s attorney, Jack Zimmerman, said photographs suggested it was much more likely that the boy had been huddled at a woman’s bosom when the Marines burst into the room and sprayed it with gunfire after first tossing in a grenade.

  • Acknowledged that photos did not contain objects which made identification of time and place impossible.

  • Impossible to determine how many shooters were in the houses, who was shot, and who died of grenade wounds.

[Source: North County Times


Day Five / Friday, July 20

Cpl. Robert Stafford

Armory Custodian for Kilo Co.

  • Testified that two AK 47s were retrieved from house one and two.

  • Testified that he believed an AK 47 was retrieved from the white car. Prosecutors stopped him from saying more because the white car is not part of the Tatum case.

[Source: unpublished reports from a hearing observer


Staff Sgt. Travis Fields

Kilo Co. platoon sergeant

According to the North County Times

On the stand, Fields testified that the rules about when Marines may open fire became less restrictive during the time of the company’s seven-month stay in Haditha. Military brass told Marines in Haditha — a hot bed of insurgency at the time, according to testimony — that they no longer had to fire warning shots, but rather were allowed to shoot to kill in hostile situations, Fields said.


Naval Criminal Investigative Service Nayda Mannle

Lead investigator.

According to the North County Times

Special Agent Nayda Mannle testified that officials at NCIS headquarters in Washington D.C. rejected a request by her and others — including a military prosecutor — that they be allowed to tape their interviews with the accused Marines.

Mannle said her bosses denied the request because earlier questioning had not been taped and “they did not want any inconsistencies.”

Mannle also said the families of the victims refused to allow investigators to exhume the bodies for autopsies.

“To them, it would be too emotionally difficult to do that,” Mannle said. She also said family members feared “their lives would be in danger” from insurgents if they helped the Americans in the investigation.


LCpl Tatum’s Statement to the Investigating Officer(As recalled by legal counsel)

Before closing arguments in his Article 32 hearing, LCpl Tatum made a statement to the hearing officer, LtCol Paul Ware.

The lance corporal spoke. He did not read a statement, or speak from notes. After so much obfuscation by prosecution witnesses, it was time for some plain talk and that is what LCpl Tatum did.

The following is a non-verbatim recollection (provided by attorney Jack B. Zimmermann) ) of the lance corporal’s statement, given on 24 July 2007. I emphasize this is from memory, not a recording. A transcript of the hearing will not be available to legal counsel until late in August.

There are some points I’d like to bring to light. 

The reason I fired in house 1 is that I knew small arms fire was coming from the south. I didn’t see where it was coming from, but I saw an M203 round hit house 1. My squad leader told me on the way to house 1 to treat it as hostile. 

I heard a Marine engage a target after entering the house, and I knew Mendoza engaged a target to the right inside the house. I heard an AK-47 being racked in the room to the left, and me and Cpl Salinas threw grenades in that room. 

After the grenade went off, I went in and followed my training firing in my sector. 

The visibility was horrible. There was dust and smoke. I really couldn’t make out more than targets.  Someone yelled there was a runner, so I followed my fire team to house 2. 

Before we entered, Mendoza engaged someone through the door. Inside, I was told to frag a room.  When I saw that room was clear, I heard another Marine engage in the next room. My duty was to help that Marine, so I went in and engaged targets. 

It was dark, I couldn’t make out a whole lot. Just targets. I only went in each room a few steps, and the shooting lasted only seconds in both houses.

I did not tell NCIS I knew there were women and children before I fired. I did not know there was women and children in that house until I went back later in the afternoon with SSgt Laughner. Otherwise, I would have physically stopped everybody from shooting.  The conversation Mendoza said happened never happened.

I am not comfortable with the fact that I might have shot a child.  I don’t know if my rounds impacted anybody. That is a burden I will have to bear.


David Allender
Defend Our Marines