CAMP PENDLETON - A federal agent said Wednesday that he couldn't tell if five Iraqi civilians killed nearly two years ago in the city of Haditha were running away when they were shot, as a Marine staff sergeant charged with the killings contends.

Special Agent Thomas Brady said his reconstruction of the scene outside a car where the five men were slain moments after a roadside bomb destroyed a Humvee and killed a lance corporal the morning of Nov. 19, 2005, was inconclusive on that point.

Brady's testimony came on the third day of an Article 32 hearing for Staff Sgt. Frank Wuterich, who is accused of killing 17 Iraqi civilians that day. The hearing will determine whether Wuterich faces court-martial for the largest civilian slaying case to arise out of the Iraq war.

Brady, a Naval Criminal Investigative Service investigator, also said his work clearly showed that two people shot the men, bolstering a defense contention that their client, Wuterich, may not have fired the first shots.

Wuterich's attorneys contend that the reconstruction suggests that while their client shot at those men, it was Sgt. Sanick Dela Cruz and not Wuterich who fired the fatal shots. Wuterich is charged with killing 17 of the 24 Iraqi civilians slain in Haditha and is one of three enlisted men from Camp Pendleton charged in the slayings.

The 27-year-old married father of three maintains he is innocent and that the civilian deaths were an unfortunate result of his Marines carrying out a legitimate action in response to the bombing. Six children and two women were among the civilians killed, slayings that prompted a worldwide outcry when they came to light early last year.

The men from the car were shot moments after emerging from their car. Wuterich maintains that the men were running, a signal he interpreted to mean they were insurgents involved in the bombing and therefore could be lawfully shot.

Dela Cruz has testified the men were not running and several stood with their hands raised over their heads when Wuterich shot them. Dela Cruz also has acknowledged also firing at those men, but testified last week he did not do so until after Wuterich began shooting.

"There were two shooting positions," Brady said under questioning from Wuterich's lead attorney, Neal Puckett, who also attempted to show from the reconstruction that Dela Cruz fired first.

In other testimony, Wuterich was described as a respected squad leader whose dealings with Iraqi civilians prior to the Nov. 19 incident were seen as positive.

"He was the least aggressive," said Staff Sgt. Travis Fields, a member of the Kilo Company platoon from Camp Pendleton's 3rd Battalion, 1st Marine Regiment involved in the Haditha killings. "He was the calmest in the squad in interacting with Iraqis."

Fields also testified that Wuterich had a good grasp on the rules of engagement, rules prosecutors contend he ignored in leading his squad in a series of "house clearing" operations following the bombing.

The house clearing began with Wuterich leading his Marines in the shooting of a man who came to the door of the first for four homes stormed that day, according to undisputed testimony. That was followed by the shooting of a second man in that home and culminating when a grenade was thrown inside a bedroom followed by indiscriminate shooting of every person inside, the testimony has shown.

That tactic was not endorsed by Fields, who said some form of positive identification should have taken place.

Asked about a statement that Wuterich made to investigators last year, that he had told his men to "shoot first and ask questions later," Fields said such a command was improper.

"It goes directly against what the rules of engagement say," he said.

Another witness, Capt. Alfonso Capers Jr., an instructor who teaches Marines about the rules of engagement, acknowledged under sharp questioning that there was no absolute standard given Marines in 2005 on how to clear rooms inside homes declared hostile and where Marines believed insurgents were hiding.

The house clearing operation had been ordered by Lt. William Kallop, the platoon commander who responded to the scene of the bombing and issued the directive to Wuterich.

"If there's a threat in there, your first job is to eliminate the threat," Capers said.

Wuterich's hearing is expected to conclude this afternoon. His attorneys said he may make an unsworn statement, meaning anything he says will not be uttered under oath and he cannot be cross-examined by prosecutors.

The Marine officer presiding over the hearing, Lt. Col. Paul Ware, also presided over hearings for two of Wuterich's co-defendants, Lance Cpls. Justin Sharratt and Stephen Tatum.

In July, Ware recommended charges against Sharratt be dropped, a recommendation later carried out by Camp Pendleton's Lt. Gen. James Mattis, the convening authority over the case.

Last month, Ware recommended charges against Tatum also be dropped. In both instances, Ware cited insufficient evidence to warrant a trial as well as inconsistencies in witness statements.

Four officers also were charged with dereliction of duty for failing to fully investigate the Haditha killings. Charges were subsequently dropped against one of those officers.

- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.