Prosecutors ask judge to deny Prophetstown anti-abortion activist’s request to plead no contest

URBANA – Federal prosecutors are fighting an elderly Prophetstown anti-abortion activist’s request to plead no contest to allegations he tried to burn down a Danville clinic where abortions will be performed.

Philip J. Buyno, 73, faces five to 20 years in prison if convicted of attempted arson for the May 20 incident. The federal system does not allow for parole.

Buyno was indicted June 6, and his appointed attorney, Sharbel A. Rantisi of Peoria, filed a petition July 25 asking U.S. Central District Court Judge Colin Stirling Bruce to allow him to plead nolo contendere, or no contest.

That means he would accept a conviction without admitting his guilt.

He is asking to do so because of his “religious beliefs,” court records show.

Nolo contendere is a tactic rarely employed or accepted, U.S. Attorney Gregory K. Harris and Assistant U.S. Attorney Eugene L. Miller said in their response to the petition, which they oppose.

“Unlike a plea of guilty, the admissions made on a plea of nolo contendere allow only for the entry of a judgment of conviction in that case and cannot be used against the defendant in subsequent litigation,” they wrote in their response.

The Department of Justice itself is no fan of the plea, which can be made without requiring any proof of the underlying facts of the crime.

It requires its attorneys to oppose the plea unless they conclude that “the circumstances of the case are so unusual that acceptance of such a plea would be in the public interest.”

“The reason is that, except in the most unusual circumstances, the United States is unwilling to condone the entry of a special plea that may help the defendant avoid legitimate consequences of his guilt,” the prosecutors said.

In this case, there are three factors the court must consider when deciding whether to allow him a nolo contendere plea: If Buyno can show there were mitigating factors in his commission of the crime; if such a plea would avoid an expensive and time-consuming trial; and if the plea will act as a sufficient deterrent to future crimes.

While Buyno’s petition notes that he admitted his guilt to authorities immediately upon his arrest on May 20, it cites only his “religious beliefs” as the reason for the lesser plea, without explaining how they might be a mitigating factor, Miller and Harris wrote.

“His motivation for wanting to enter a plea of nolo contendere has to do with his religious beliefs, as those beliefs are completely opposed to the expected purpose and use of the building into which he crashed and planned on burning down,” Rantisi said in Buyno’s petition.

That’s not a sufficient argument, prosecutors said.

“It is not apparent, nor does the defendant articulate, how pleading guilty versus nolo contendere to attempted arson will do violence to his religious beliefs,” Miller and Harris wrote.

Allowing the defendant here to avoid responsibility for his conduct ... as well as legitimate consequences of his guilt, will signal to the public that this crime is somehow less serious and less deserving of prosecution than the typical attempted arson.”

—  U.S. Attorney Gregory K. Harris and Assistant U.S. Attorney Eugene L. Miller

Buyno also cites the cost savings, but the trial, set for Sept. 12, is expected to last only a day or two, and pleading guilty would result in the same savings, the prosecutors said.

Their main concern, however, is that a plea of no contest “will not have the same deterrent effect as a guilty plea or conviction at trial.

“Allowing the defendant here to avoid responsibility for his conduct ... as well as legitimate consequences of his guilt, will signal to the public that this crime is somehow less serious and less deserving of prosecution than the typical attempted arson,” prosecutors said.

Not only do the victims oppose the plea, but also, “accepting a plea of nolo contendere in this case, which has received media attention, may erode the public’s confidence in the fairness of our system of justice,” prosecutors said.

According to the probable cause affidavit, Buyno told investigators he was a member of an anti-abortion “rescue group” that prevents abortion clinics from being established.

About 4:30 a.m. May 20, according to the record, he intentionally backed his car into the entrance of the Danville building, which was being remodeled into a reproductive health clinic. Interstate commerce would be conducted there because of its proximity to the Illinois-Indiana border, hence the federal charge.

The car was filled with containers of gasoline, wood and old tires Buyno planned to use to burn down the building, prosecutors alleged.

His effort, which was caught on video surveillance cameras, failed when his car doors became jammed shut by the debris, and he couldn’t get out or reach a container of gasoline he had thrown out the window, he told investigators.

Buyno also told them that “if I could sneak in with a gas can and a match, I’d go there again,” and that if he was released from jail, he’ll go back and finish the job, the affidavit said.

Buyno is in the custody of the U.S. Marshal’s Service while his case proceeds. A hearing is set for Aug. 28.