If the request is approved, it would be the first time since the federal Death Penalty Act was enacted in 1988 that capital punishment had been sought against someone already serving a life sentence imposed by a state court in the same case, legal observers said.
US Justice Department officials recently briefed Curley family members on the plan, telling them that Ashcroft's decision is expected soon and that a grand jury might be convened this fall.
The federal death penalty statute covers crimes in which death results after a defendant crosses state lines to have sexual relations with a child under 12.
The victim's father, Robert Curley Sr., said yesterday that he does not support the effort to bring such a federal charge, although he said Jeffrey's mother and the boy's two brothers are enthusiastic.
"I was kind of overruled," Curley said of the family's reaction. "I'm not going to go out there holding rosary beads and holding a sign for Jaynes. But, again, I'm against the death penalty, and they know that."
Massachusetts does not have a death penalty. Efforts to reinstate capital punishment in the state became a divisive campaign issue in the 1998 gubernatorial race. A year before, a measure to reinstate the penalty in Massachusetts failed by one vote in the House of Representatives.
Prosecutors at the US attorney's office in Boston declined to comment yesterday on developments in the case.
However, Curley and lawyers familiar with the effort by federal prosecutors said that US Attorney Michael J. Sullivan, First Assistant US Attorney Gerard T. Leone Jr., and Middlesex District Attorney Martha Coakley have been in contact with the Curley family since midsummer regarding the possible pursuit of a death sentence.
Curley said that Leone called him Saturday to report that witnesses in the case were being interviewed.
Although such a trial would be highly unusual, even lawyers who oppose the death penalty conceded yesterday that the government is within its rights to pursue the case, because state and US courts are separate, sovereign judicial entities.
Jaynes, 28, and Salvatore Sicari were convicted in 1998 in separate trials in Curley's death. Sicari, who received a sentence of life without parole for first-degree murder, confessed to police and testified that Jaynes killed the boy by sticking a gas-soaked rag in his mouth after he refused the man's sexual advances. Curley's body was placed in the trunk of Jaynes's car, stuffed in a plastic container, and then dumped into a southern Maine river. At their trials, each blamed the other for the murder.
Jaynes was convicted of second-degree murder and sentenced to life in prison with the possibility for parole after 23 years. Federal prosecutors are reviewing the case, in part, because Jaynes drove from his apartment in Manchester, N.H., to Cambridge the day Curley was killed.
Robert Jubinville, an attorney who represented Jaynes during the trial, said he had not heard of the effort to seek the death penalty for his former client.
"That's so goofy," he said. "It was clear to me, when I tried the case, that Sicari was the one who committed the crime."
The charge being considered for Jaynes was one of 60 new offenses added to the list of federal capital crimes in 1994, when the Death Penalty Act was expanded.
Curley said he was told, and a lawyer confirmed, that Ashcroft has been given a range of options to consider in Jaynes's case. The death penalty charge is the most serious possible option, and the attorney general's decision will be binding on Sullivan's office.
The Curley review is another sign that Ashcroft is intent on aggressively seeking the death penalty across the country, including doing so in states that traditionally have opposed the practice, according to David Hoose, a lawyer who defended nurse Kristen Gilbert, who was charged with killing four patients in a VA medical center in Northampton.
Although Gilbert was convicted in 2001, the jury sentenced her to life in prison instead of death.
"There's no question that Ashcroft has proven himself to be an activist with an agenda to nationalize the death penalty, and he wants to bring a little bit of Houston to Boston," Hoose said.Since the federal Death Penalty Act was passed in 1988, no other death penalty case has gone to trial when the defendant already was serving a life sentence imposed by a state court in the same case, said David Bruck, a South Carolina lawyer with the Death Penalty Resource Counsel Project. "Life is life," Bruck said of Jaynes's sentence. "Are you going to parole a guy like that? I don't think so."
The closest parallel occurred in the early 1990s when the Justice Department under President George H. W. Bush attempted to try a man convicted in Mississippi of killing a US forest ranger. The attempt was quashed by a federal appeals court, Bruck said.
"The philosophy [under Ashcroft] is to show that the death penalty is a part of crime-fighting and . . . will be sought aggressively and frequently," said Richard Dieter, director of the Death Penalty Information Center, a nonprofit organization based in Washington that does research on capital punishment, but does not take a stand on the issue.
Since being appointed in 2001, Ashcroft has authorized prosecutors to seek the federal death penalty for 93 defendants. Seven of the cases were in states that do not have capital punishment.
In Boston, federal prosecutors have received approval from Ashcroft to seek the death penalty for two Dorchester gang members charged with murdering a rival two years ago.
Suffolk District Attorney Daniel F. Conley opposes the decision to seek the death penalty in that case, arguing that capital punishment is not an effective means of fighting urban violence.
In addition, a federal jury is being selected in Boston to decide whether Gary Sampson, who pleaded guilty to killing two men in 2001, should be executed or sentenced to life in prison.
© Copyright 2003 Globe Newspaper Company.