THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
GRETA VAN SUSTEREN, HOST: Let me go first to you, John.
A man's in custody, Nikolay Soltys. You were prosecutor in the state of California. What is going on right now, when he's taken into custody?
JOHN BURRIS, FORMER CALIFORNIA PROSECUTOR: Well, right now he's obviously being booked, and then shortly thereafter he's going to have an arraignment either today or the next day, and at that time he will find out the nature of the charges against him in a formalized way.
There's a question of bail, whether he's going to be eligible for bail. It's not likely, but he certainly is entitled to have a bail hearing. He has to have a lawyer appointed to represent him. More likely than not, that will be the public defender.
And, essentially, just the basic preliminary work in order to put this matter on the calendar is taking place now.
VAN SUSTEREN: How soon does he get a lawyer in California, John?
BURRIS: Within -- as show as he shows up in court, they will see if he has a lawyer. If he says no, they will appoint a lawyer then; but certainly within the next day or so if he doesn't have one.
He could say, I'm going to get my own counsel. The judge will give him a day or two to see if he can work that out. But if not, the public defender will be appointed very quickly.
VAN SUSTEREN: But there's obviously a gap between the time he's been taken into custody and the time he gets the lawyer. They're going to want to talk to him, but he has a right to a lawyer. How did you handle that conflict?
BURRIS: Well, certainly they're going to want to talk to him, but he can refuse because he has the Miranda warnings that have to be given to him. The case is already focused on him. They know about the charges. And so he really does not have an obligation to speak with them at all. I would imagine that he will not do that. I'm sure his family has advised him of that.
What will next happen, of course, is that he will appear in court. And once this happens; once he has now focused up (sic), it is very unlikely that he will talk to anyone. The police obviously will try to focus on him right now to fill up any particular gaps they can by talking to him about the nature of the crime, why he committed the crime. He obviously has to waive his Miranda warnings for that to happen.
VAN SUSTEREN: Ron Sullivan, you're a defense lawyer. When do you get into the picture, and what do you do?
RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Generally, if it's a public defender, the public defender generally doesn't get in until after the first court appearance, which is a presentment or an arraignment or some initial appearance.
VAN SUSTEREN: But the public defender there must be watching the case. They know they're going to get appointed this case. They know the police are going to try to talk to him. They know that he's from the Ukraine. They know -- I mean, there is that conflict; the prosecutor wants to convict him and the defense attorney wants to do his job...
SULLIVAN: You're absolutely right. So in that jurisdiction I imagine the public defender is faxing a letter to the chief of police right now saying that, you know, we represent Mr. Soltys, we want to speak with him, do not speak with him until -- unless and until a lawyer is present.
That sort of letter -- there's some bad case law out there -- is probably not effective, but it may slow things down long enough for a lawyer to sort of get over to the house and say -- to the police station saying I want to speak to my client.
BURRIS: What should happen, though, is that the family, now that he's arrested, should send a lawyer over there immediately.
VAN SUSTEREN: The family's got no money. In fact, he's accused of killing some of his family.
BURRIS: But a family member can send someone over there immediately just to slow the process down. He doesn't even have to be retained.
A family member goes in and says, I have been sent here by one of your family members, let me talk to you about it; I may or may not represent you at a later point. But at least give him some advisement as to his rights. I don't think that the public defender has any right to come in at this point until after he's been arraigned or he's been appointed.
But I certainly do believe that a family member could send someone in and tell him, don't talk to a soul.
VAN SUSTEREN: All right, well speaking of family member, that may be how he was surrendered.
Let's go out to Kami Lloyd (ph), who's been covering this story. Kami, what can you tell us as to -- what was it; what precipitated the arrest?
UNIDENTIFIED FEMALE: Well, Greta, we can tell you he was taken into...
VAN SUSTEREN: I seem to be losing...
UNIDENTIFIED FEMALE: Under surveillance since the murders happened.
There is -- it's very probable, they thought, that he might come back to a familiar location where he thought he might be able to get aid.
Now, about a quarter to 8:00 this morning, sheriff's detectives who were watching this house saw the family -- the entire family jump in their car and high-tail it out of the home. About that time the brother of Nikolay Soltys called 911 and said, he's in our backyard.
Detectives went in and found him hiding under a desk. He was taken into custody without incident. Sheriff Lou Blanas here in Sacramento said that the suspect looked dirty, looked scruffy, like he'd been living off the land for quite some time.
At this point he has been taken downtown to Sacramento where detectives are going to interview him. As your previous guests said, he doesn't have to say anything. He can get his Miranda rights, and he doesn't have to say anything. But the question, of course, on everyone's mind is what happened? Why did this happen?
But he was taken into custody without incident about a quarter to 8:00 this morning. His brother called 911.
VAN SUSTEREN: Kami, do we know how far away the family home is from where the car was abandoned last week?
UNIDENTIFIED FEMALE: It's several miles away. And that's one of the questions that detectives have. They have no idea how the suspect got from where the original car was abandoned to this location. There was belief that he was driving an emerald green Ford Explorer. That car has not been found at this point. He was found by himself in the backyard of this house. There's no Ford Explorer around here.
So that's one of the questions detectives are going to try to unravel is how he got from the Nissan Altima to the green Ford Explorer and then, without a car, here at his mom's house.
VAN SUSTEREN: Is there -- do they have any information as to what he's been doing for the last 10 days? And when did he arrive at his mother's house? Has he been staying there for a number of days, or was this the first time he showed up?
UNIDENTIFIED FEMALE: Well, from what we understand this is the first time he showed up. Sheriff's detectives have had this house under surveillance for quite some time since the murders happened 10 days ago. And around a quarter to eight this morning, detectives who were watching that house saw the entire family up in the car and just take off. And it was about a quarter to eight that Nikolay Soltys' brother called 911 and said he's in our backyard.
All of that indicates that the family did not want him in that backyard and that he was not being -- that he was not hiding out at his mom's house, so to speak.
That's all the initial information that we have right now. We have no idea where he has been for the past 10 days. But when he was taken in to custody he was dirty, he was scruffy-looking, as the sheriff described it, almost as though he'd been on the run that entire time, that he had not been taken care of, that he had not been hiding out in a house or anything like that.
VAN SUSTEREN: Did he appear to be cooperative or showing -- and did he exhibit anything that might suggest any sort of emotional or mental problems?
UNIDENTIFIED FEMALE: Detectives are not saying anything about what the suspect may have said or may not have said when they took him into custody.
We do know that he was taken into custody without incident, he did not fight. He did -- there were no problems arresting him. He was very simple -- a very simple arrest. He was put in the back of the sheriff's patrol car and then taken downtown.
Whether or not he will say anything is of course up to Nikolay Soltys. And whether or not the detective will share that with us is a whole another story.
VAN SUSTEREN: OK, 1:00 Eastern there will be a press conference and CNN will take it live by the Sheriff's Department out in Sacramento.
We're going to take a quick break and we'll be back with breaking news. Stay with us.
VAN SUSTEREN: Nikolay Soltys is in custody. He is suspected of killing six families member about 10 days ago, as he's FBI's 10 Most Wanted List. He was arrested earlier today in Sacramento after an apparent tip from a brother to a 911 call.
We expect in about 15 minutes there will be a press conference held by Sheriff's Department in Sacramento. CNN will carry the press conference live.
And let me go to you, Ron Sullivan. He's in custody. He's Ukrainian. Defense lawyer has to be able to get him to communicate, to talk. How do you bridge that gap, especially since he's Ukrainian and may not be used to our system?
SULLIVAN: Well, the first is the languages gap. You're going to have to get an interpreter in there -- you likely would have to get an interpreter in there to speak with him in a language that he understand fully. And the interpreter will be protected by attorney- client privilege as well, so any information that is exchanged in that meeting would be protected.
But you would also want to talk with someone at a cultural level to see if there are certain nonverbal queues that may be misunderstood or mistaken because you want to connect at every possible level, not simply linguistically, but you want to be able to understand certain cultural norms and worries of your client so that communication in the broadest sense is effective. It may be a difficult task, but you've got to undertake the...
VAN SUSTEREN: Norman -- let me go to a prosecutor out in California, Norman Vroman, who joins us.
Norman, the prosecutor's job right now is to try to at least make the case easier and to secure information from this man, who's in custody. What do you do to get that information?
NORMAN VROMAN, MENDOCINO COUNTY DISTRICT ATTORNEY: Where would the district attorney get that information?
VAN SUSTEREN: Yes. How does the district attorney work with the police department to get this man at least to provide statements at this point?
VROMAN: Well, the primary responsibility, of course, is with law enforcement agency, but district attorneys in California are mandated by the constitution to not only prosecute but also investigate.
I can tell you in my county I have a staff of investigators, and when we have a major crime like you're talking about now, I assign at least one or two investigators to assist the police department in whatever they're doing.
VAN SUSTEREN: Jon.
HAMILTON: I was going to say, in some counties, certainly the county I came from, in a case of this magnitude where the most important thing you want to do is get a statement, you want to assign a deputy district attorney to that case immediately, and will go either with the police and or with their own investigators and go to the place and try to get that statement from them.
VAN SUSTEREN: You know what I would be interested in, Jon? Is I would be interested -- as filthy as apparently he is, from what Kami (ph) describes -- is I would still want to figure out a way to comb him for evidence to see whether he has a blood evidence on him. Forget the statement, in a sense, if you can tie him up with blood evidence one of the victims.
How do you as prosecutor get the permission to take evidence from him? HAMILTON: Well, number one, you don't have to have permission to take this kind of evidence, blood from him or anything of that nature, to comb him, you don't really have to do that. That's a search, assuming you have a search warrant. But he's now in custody. I think you can get that done with...
VAN SUSTEREN: you can take his clothes?
HAMILTON: You can certainly take his clothes, no question about it. You can take -- get blood from him. You can basically get that kind of evidence from him immediately.
The big problem that the prosecutor has, of course, is, and I think what has been alluded to, is: How do you get a voluntary statement from him? How do you get to the point where you can sort of freeze the situation and really understand? This guy is Ukrainian, he may have some speaking knowledge of English, but you always got a problem of when a person like this -- they may have a somewhat of an understanding of English, but not a clear enough one, and you may ultimately have questions of voluntariness, even if he says: I will speak to you.
So this is a very tough situation for the prosecutor. But they'd be wise now to have a interpreter present with him when they go in there so they can make sure that they'll have the best chance of preserving his testimony later.
VAN SUSTEREN: Ron, do you think the clothes are important, secure those clothes from him?
SULLIVAN: From government's perspective, absolutely. They would want to get the clothes and to see what's on there.
VAN SUSTEREN: Is there anything a defense lawyer can do to try to secure those clothes? I mean, is -- those get turned over automatic?
SULLIVAN: I think now that he's under arrest, searching -- incident to an arrest, they can get the clothes.
I think I could probably exclude evidence taken from his body unless they went before a judge and got like a blood order.
VAN SUSTEREN: You mean blood actually from him?
SULLIVAN: From him.
VAN SUSTEREN: And with the blood I think that's probably the most important here, is blood from the victims on him and on his clothes. If he's been on the run he hasn't had access to new clothes.
SULLIVAN: Right. And I don't think that I could get that excluded if they -- if he's wearing the clothes and they take it from him after the arrest. You could challenge the arrest and say that this was, you know, an unlawful fruit of the arrest. But...
VAN SUSTEREN: If he's got a 10 Most Wanted, I think that's fruitless.
SULLIVAN: That's right.
VAN SUSTEREN: We're about 12 minutes away from press conference. CNN will carry it live from the Sacramento Sheriff's Department.
We're going to take a quick break. We'll be back with more breaking news. Stay with us.
VAN SUSTEREN: Nikolay Soltys, who the FBI says was armed and dangerous and was on their top 10 list, a suspect in the killings of six members of his family is in custody in California, having been captured earlier today. We're expecting a press conference in just a few minutes, out in Sacramento from the sheriff's department.
In the meantime, let me go back to Norman Vroman, a prosecutor from the state of California. Norman, is this a case, obviously it has not officially been charged yet, but is this a death penalty eligible case in the state of California?
VROMAN: You know, I have no independence knowledge of the facts of it. But just based on what I've heard from the media, it certainly sounds like it could qualify as a capital case.
VAN SUSTEREN: John, what qualifies it under California law? Is it multiple death? Is that what would make this a capital case?
BURRIS: Yes, multiple deaths at one point in time could easily qualify it. This is not a case where there's going to be any close question. Unless something comes up to the prosecutor at the outset to suggest he has some kind of mental defect of some kind.
But on its face, a prosecutor must file this case as a death penalty, that is, a murder case with special circumstances. It doesn't have to be all first degree murders. There could be one first degree and a couple seconds. Whatever it happens to be, but you have multiple homicides here. So there's no doubt that a prosecutor must go forward with a first degree -- a special circumstance death penalty type filing.
VAN SUSTEREN: Ron, a very tough case for a defense attorney because it's so -- one of the people killed was his pregnant wife, another is young son. Brutal murder. Insanity must be at least one thing that a defense lawyer would at least be considering at this juncture.
How do you investigate his background? Where do you go, especially with someone who has just come to this country?
SULLIVAN: The normal place you would go is to his family. It will be tricky in this instance because he's alleged to have harmed his family. Normally you would go to the mother, sisters, brothers and say, talk to me, tell me about my client, anything happens, so forth and so on, and get information. Then sort of, once you get some initial information from the family, then you go and look and see if there are reports from social workers and that sort of thing that you can get your hands on.
It may be tough in this case because of the alleged victims, but you still -- that would probably be my first place to go, to one of the family members who have expressed some sympathy for him, as starting point in my analysis.
VAN SUSTEREN: As another starting point, though, one of the -- at least one of the most difficult things a defense attorney has here, is there's been so much publicity. You know, publicity was in some ways in order to capture him, because he was rumored to be armed and dangerous.
But you've got to overcome what is the presumption of guilt, because everyone out there has been looking for him, and the media's been on it.
How does a defense lawyer -- how do you begin to bring that back to presumption of innocence, is it possible?
SULLIVAN: Well, it's difficult I think in this case, but there's a whole body of law that deals with prejudicial pretrial publicity. Besides the alliterative value of it, what it means is that the due process clause of the Constitution says that everyone has a right to a fair trial, and that the jurors in the trial are not predisposed towards guilt.
If you can demonstrate that there's been so much publicity pointing towards guilt, then you have a constitutional claim that the trial should not go forward, perhaps, in that venue.
VAN SUSTEREN: Except this has been nationwide publicity, we're doing it here in Washington, D.C.
SULLIVAN: This hearkens back sort of to the Nixon case, there was a lot of talk about whether President Nixon could receive a fair trial anywhere.
In any sort of case where you have national publicity; media, Internet, newspapers, the venue charge may not be the best place to go.
VAN SUSTEREN: And of course we're standing by. We are expecting a press conference in just a few moments from the sheriff's department in Sacramento to discuss the capture of Nikolay Soltys.
John, you wanted to get in.
BURRIS: I think you can put aside the venue issues for jurors, ultimately when the case is presented. These are tough questions, but we've had multiple cases in this country where cases are tried, and you have to deal with the question: What is prejudicial effect of the publicity? Sacramento...
VAN SUSTEREN: But, in a whodunit, it's harder. In this case, where there may be an insanity defense, it may be a little bit easier, that whole thing.
BURRIS: I think it's -- because in the end, everyone knows he has done it, that's a presumptuous. Now, the question then becomes: Why did he do it? So, the whole case will be tried around the mental state of this particular person.
I think you can try that kind of case, despite all of the mass publicity that you have received. So, from a defense point of view, it can be done. From a prosecutor's point of view, they're going to want to know, frankly, what did he do during this 10-day period? Because if he has an insanity-type defense, how he conducted himself over this 10-day period within his run, may be reflective of his mental state of the kind that the prosecutor can use to undermine any claims of insanity on the part of the defense at some later point.
VAN SUSTEREN: But, on the other hand you might want to, of course, make sure that you have pictures of him if he looks particularly distraught and looks, perhaps, insane. But that's all the time we have.
We're going to go out to California in just a few minutes to watch the press conference. Sacramento, the sheriff's department, they have captured Nikolay Soltys. Press conference is about to begin.
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