DA Faces a Fielder's Choice

COMMENTARY Crime and Justice

DA Faces a Fielder's Choice

May 14th, 2008 2 min read

Former Visiting Fellow

Andrew served as a Visiting Fellow.

Concrete worker Gino Castignoli probably should have to face a few fastballs -- high and inside -- from New York Yankees pitchers Mike Mussina and Chien-Ming Wang. But the district attorney shouldn't be able to throw the book at him.

Castignoli is the overzealous Boston Red Sox fan who buried a David Ortiz jersey in the freshly poured cement of the new Yankee Stadium.

Ortiz, the Sox's No. 34, is one of the players Bostonians think of when they try to imagine what a Red Sox equivalent of a Bronx Bomber might be like.

Castignoli's attempt to curse the Yanks and their new park was revealed when he bragged about his deed to the New York Post, which declared the prank a "hex" on the Yanks. Castignoli had worked at the stadium only one day, so it was no trick to figure out where the shirt was buried -- right behind home plate, toward the third-base side.

Five hours of jack-hammering later and the joker's deed was undone, the shirt plucked from beneath 2 feet of concrete and rubble. The Post's next-day headline: "Hex No." The shirt's on its way to the Jimmy Fund, a cancer charity, which will put it on auction.

End of the story? Not so fast.

Lonn Trost, Yankees chief operating officer, says the team is exploring possible criminal charges against Castignoli and is in discussions with the Bronx district attorney's office. They're still trying to sort out exactly what crime Castignoli might have committed. No surprise, there's no law on the books that fits this unusual situation.

Even more surprising, that may not matter.

Thanks to "overcriminalization" -- tough-on-crime politicians' habit of making every dumb thing a criminal offense -- the Bronx mason almost surely violated some criminal law. Finding one may take some sleuthing through the statutes, but if the DA wants to prosecute this case, he'll figure something out.

As ridiculous as it sounds, one possibility is wire fraud. After the Post revealed his prank, Castignoli purportedly told the team, probably by telephone, that the jersey was buried beneath the third-base line. It wasn't. That could even be a federal crime.

Extortion is another possibility. In court, the slightest evidence Castignoli might have been looking for a few bucks before giving up the location to the Yanks could be enough to convict. And if a friend knew in advance of Castignoli's plot and didn't take steps to stop it, that could be conspiracy or racketeering, both federal offenses.

Put him in front of a Bronx jury and Castignoli could wind up in the slammer.

This isn't the way criminal law is supposed to work. Murder, robbery, assault, kidnapping and dealing drugs are crimes; everyone knows that intuitively. Pulling a stupid stunt isn't -- or at least, it shouldn't be. Making everything a crime cheapens the seriousness of the law. If every bad thing is a crime and worthy of society's greatest official condemnation, then nothing is.

And presumably the Bronx DA has something better to do with his time than go after this character. Last I checked, New York had one or two murders that are still unsolved.

If Castignoli is guilty of a crime, then anyone who's pulled a prank probably is. That's just wrong.

But that's not to say the BoSox-crazed mason should get off scot-free. Ripping up the concrete cost the Yanks a little time and money, and the team can sue him to make him pay for his mischief. It makes more sense than calling in the sheriff.

The sad fact, though, is that whether Castignoli winds up in criminal court, or even in prison, probably won't have much to do with the nuts and bolts of the law. If the DA wants to charge him, he'll find a way.

That's not a good thing. Yankees fans, after all, might want to keep their options open for the next time someone's doing concrete work at Fenway.

Andrew M. Grossman is Senior Legal Policy Analyst at The Heritage Foundation.

First Appeared in FOXNews.com