As Maryland goes, so goes the military?

At two points in Loving (one in the majority opinion, one in the dissent), the subject of the standard for capital representation in Maryland arises. See Loving v. United States, __ M.J. __, No. 06-8006, slip op. at 21 (C.A.A.F. Sept. 29, 2006); id. at 16 (Crawford, J., dissenting). This seems natural enough, since Loving involves an application of the Supreme Court’s opinion in Wiggins v. Smith, 539 U.S. 510 (2003), which was an ineffective assistance of counsel case involving a Maryland death sentence. But it also reminds us that military law is closely tied to Maryland law.

Those of you who know me may be skeptical of this claim. You know that I was born in Maryland 45 years tomorrow, that I have been a member of the Maryland bar for almost 20 years, and that I bleed Terrapin red. (Come to think of it, all of us have Terrapin red blood – even Duke fans.) So for you skeptics, here’s the evidence.

During the House Hearings on the UCMJ, then-OSD Associate General Counsel Felix Larkin explained, “The civil crimes in the Articles of War, as defined by the manuals, were generally the definitions in the common law, actually the common law of Maryland which, as a matter of fact, is very close to the Federal law definitions but is not identical.” Hearings Before a Subcomm. of the Comm. on Armed Services, House of Representatives, on H.R. 2498, 81st Cong., 1st Sess. 1238 (1949). Similar language then appeared in both the House and Senate Armed Services Committees’ reports on the UCMJ. H.R. Rep. No. 491, 81st Cong. 1st Sess. 35 (1949); S. Rep. No. 486, 81st Cong. 1st Sess. 32 (1949).

This language led the Court of Appeals for the Armed Forces, in an opinion authored by Judge Crawford, to declare that Maryland law is an important source of authority in construing the UCMJ punitive articles that are based on common law offenses. United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997) (“The military has a hierarchical scheme as to rights, duties, and obligations. The highest source of these is the Constitution, followed by the Uniform Code of Military Justice, the Manual for Courts-Martial, departmental regulations, service regulations, and the common law of Maryland (see S.Rep. No. 486, 81st Cong., 1st Sess. 32 (1949).").

This is an important practice point: whenever construing one of the UCMJ's non-military offenses, you should analyze Maryland law construing the same offense to determine if it helps your client’s position.

--Dwight Sullivan