This is a partial transcript from "On the Record," January 30, 2006, that has been edited for clarity.
GRETA VAN SUSTEREN, HOST: Tonight, new information about George Smith's final hours. The honeymooner was with four young men the night he disappeared from a cruise ship. And, tonight the lawyer for one of those men is here.
Twenty-year-old Rusty Kofman was partying with George that night and Rusty's lawyer Albert Dayan joins us live in New York, welcome.
ALBERT DAYAN, ATTORNEY FOR CRUISE SHIP PASSENGER: Good evening. Thank you for having me.
VAN SUSTEREN: All right, Albert, what happened that night?
DAYAN: It's interesting. I just want to explain to our audience why I'm here. I understand it is a tragedy, the disappearance of Mr. Smith. My concern is that one tragedy is not going to lead to another tragedy, particularly because there is such great pressure from the family to have someone responsible for something that could have been an accident.
VAN SUSTEREN: So you want to tell the facts.
DAYAN: Yes, I do want to speak about the facts.
VAN SUSTEREN: All right, so what happened?
DAYAN: Well, Rusty had asked his father, who was an elderly gentleman, after completing a successful semester at a college, he's a very bright young man who had received approximately 1,400 on his SATs and asked his father permission to go on this cruise with a family of approximately seven individuals.
The father had given his permission to Rusty and Rusty had boarded a ship. It was a dream vacation for a 20-year-old man, a boy actually. He had met Mr. and Mrs. Smith on July 4th. He had seen them from time to time playing at the casino and he had met them at a bar/lounge.
He had seen and observed Mr. Smith have drinks and Mrs. Smith have drinks at that time. He had also observed that Mrs. Smith had acted extremely flirtatious with other men in the presence of Mr. Smith. And Rusty had found, Rusty's my client of course, he had found that to be very unusual. At that time, he observes, Rusty that is observes Mrs. Smith exchange words, hostile words with Mr. Smith.
VAN SUSTEREN: About what time was this? Is this into the 5th or is this still the Fourth of July?
DAYAN: No, it's into the 5th.
VAN SUSTEREN: OK.
DAYAN: it's after the casino. They went to a casino, which was the regular routine. They would have dinner. They would go to a casino and then from there they would proceed to a club/lounge.
The lounge would usually close at about three o'clock. Right before the lounge closes, Rusty observes Mrs. Smith draping herself over other men. He found it to be very unusual because this is in the presence of her husband.
He observes Mr. Smith in anger exchange certain words with Mrs. Smith. She kicks him in the groin and she storms out of the lounge. She is followed, however, by the casino manager who had been openly flirtatious with her during the club scene.
Mr. Smith is so intoxicated that in his attempt to actually sit down he falls off the chair. At this time, Rusty along with three other individuals, two brothers from Brooklyn and a cousin from Florida, assist Mr. Smith getting back onto his seat.
Mr. Smith is extremely intoxicated because it is no secret that they were all drinking potent alcohol at this time. When the club was about to close the two individuals out of the four who were present, the two individuals being a young man from Florida and a young man from California who had already befriended Mr. Smith, insist that everyone should help Mr. Smith back into his cabin.
Mind you that Rusty had just met Mr. Smith and is not very anxious in assisting a man to his cabin and there is this discussion whether they should do it. Rusty acquiesces and they help Mr. Smith. They actually carry him.
VAN SUSTEREN: Is he unconscious or falling asleep? How drunk is he?
DAYAN: He's bombed.
VAN SUSTEREN: OK, bombed — he can't walk himself.
DAYAN: Yes, he cannot. He's actually being carried by...
VAN SUSTEREN: How did they know where to take him?
DAYAN: Well, he told them what the room is and the two individuals who had met Mr. Smith prior to the night in question actually already knew what cabin he stayed in.
VAN SUSTEREN: All right, so they had the cabin number. Now, Albert, we're going to take a quick break.
DAYAN: Of course.
VAN SUSTEREN: Hold that thought and we'll come right back at that point.
VAN SUSTEREN: We're back with attorney Albert Dayan. His client was with George Smith IV the night he disappeared from his honeymoon cruise.
Albert, OK, where we left off is that your client and three others bring George to his cabin.
VAN SUSTEREN: Because he's too intoxicated. They go inside the cabin and what happens then?
DAYAN: Well, they lead him back to the cabin. In fact, George is falling all over the place. He has to be actually carried by these young men. They bring him back to the cabin. At this time, George realizes I believe that one of the young men actually makes a comment to George, "Where is your wife?"
And, at this time, George also goes into a quandary as to where his wife is and there's a discussion about where his wife is. And George asks these young men to assist him to locate the wife.
The young men at this time are beginning to discuss amongst themselves whether they want to go and try to find the wife because, again, two of the young men already know George from before. The other two men had just met George at the club.
So, there is this loud discussion amongst the young men about whether they should go look for the wife. They do decide to assist George, who changes into another shirt. Again, they take him to look on the 9th deck.
VAN SUSTEREN: So they physically take him to look?
VAN SUSTEREN: OK.
DAYAN: They do take him to look. They don't find the wife. They go as far as the pool area. They bring him back. They lay him on his bed. George is extremely grateful. In fact, he's not very concerned at this juncture about where his wife is.
He's very grateful to these young men. In fact, he kisses some of these young men and tells them that he's definitely going to buy a round of drinks tomorrow and they're definitely going to celebrate. They leave him on his bed and walk away. At this point, they go back to their room and to my client's room and they're later joined by the fifth individual.
VAN SUSTEREN: Who is a minor and wasn't with them because of his age?
DAYAN: That's correct. That's the younger brother out of the two brothers from Brooklyn. Now, there's been some evidence about...
VAN SUSTEREN: Did they ever go back to George Smith's room after they left at that point?
DAYAN: No, absolutely not.
VAN SUSTEREN: How long were they in George Smith's room?
DAYAN: Long enough just to leave him in his bed and long enough to have a discussion the first time whether they should go back and look for the wife.
VAN SUSTEREN: Did they hear any pounding on the wall at any point while they were in there?
DAYAN: No and my client does not remember hearing any pounds on the wall.
VAN SUSTEREN: Did they go into the cabin bathroom and see any blood on any towel?
DAYAN: No, absolutely not.
VAN SUSTEREN: Was George bleeding at all?
DAYAN: Not that they had observed.
VAN SUSTEREN: Did any of them go out on the balcony?
DAYAN: No, my client had never seen anybody go onto the balcony, he remembers them leaving Mr. Smith on his bed and leaving that room. There were some tests...
VAN SUSTEREN: Was he dressed?
DAYAN: Yes, they did take off his shoes. I understand that there was some evidence that somebody may have seen three individuals walk into the hallway. You have to remember, you have to be mindful of the fact that that hallway is about 36 to 42 inches wide. You put two guys shoulder-to-shoulder and a third one in the middle you can't see there's a fourth individual there.
VAN SUSTEREN: So, all four left together?
VAN SUSTEREN: And when they left they left George. Was he lying in his bed? Was he talking?
DAYAN: No, they left. He was very grateful. He was speaking with them about how grateful he was and about how many shots he was going to buy for them tomorrow in the form of gratitude.
VAN SUSTEREN: No drinking games inside the room?
DAYAN: Absolutely not.
VAN SUSTEREN: Any drinking in the room at all?
DAYAN: Well, you see, my client doesn't remember whether one of the individuals may have had a beer at the time they were accompanying Mr. Smith into the room the first time. See you can't really recollect those things. It's not like you're observing a movie at that time and saying to yourself, "I'm going to be questioned about these incidents at a later future."
VAN SUSTEREN: All right, so what time does your client estimate he got back to his room?
DAYAN: You see he doesn't have to estimate. We had provided the FBI with photographs — time-stamped photographs — which indicate that my client was in the room at approximately 4:00 a.m. They had ordered a ton of room service. We actually had provided the FBI food photographs of that room service.
The food service had arrived at approximately 4:20 that morning and there's a time stamp. Of course there's an indication of a seven-hour lapse of difference in time between New York and the time of the cruise.
VAN SUSTEREN: Right but about four o'clock that time.
DAYAN: Four-twenty to be precise.
VAN SUSTEREN: Was when it arrived. All right, Albert, stand by. We're going to have much more in just a moment.
VAN SUSTEREN: Joining us again in New York is Albert Dayan. He's the lawyer for a young man who was partying with George Smith IV the night he disappeared from his honeymoon cruise.
Albert, has your client talked to the FBI?
DAYAN: He has. He is actually the only individual unbelievably had decided to cooperate with the FBI immediately upon being contacted by the FBI.
VAN SUSTEREN: When was he contacted about?
DAYAN: He was contacted approximately a couple of months after he had arrived to New York and I believe it is this cautiousness of innocence that this young man had that he had decided to cooperate with the FBI. Everyone else had retained a lawyer.
The young man was actually misled by everyone who he believed were his friends who had told him, "Look, we just hired a lawyer to sue the ship." In fact they all hired criminal lawyers and had asserted their Fifth Amendment privilege and not speak to the FBI.
This young man, my client, Mr. Kofman, had actually met with the FBI agents on three separate occasions and was grilled. Yes, of course, they were very kind to him at first but when they did not get a confession to whatever they thought actually had happened on the ship and, of course, a confession corroborating foul play, they would get into this young man's face and so close that they would actually spit into his face and propound theories of guilt into this young man's face.
They would tell him that they had witnesses that saw him do it, that they had witnesses that had observed him push Mr. Smith over the balcony. This young man remained astern into the position of innocence.
And it was remarkable that he did not confess. Most young men, most young men, innocent or not, would have confessed to anything being grilled the way he was grilled by the FBI.
So, I don't blame him by hiring a lawyer now and actually asserting his Fifth Amendment, yet he's still showing a form of cooperation. He's still showing a form of working with the FBI by permitting me to go on this show and speaking to the American public and to the Smith family and telling them exactly what happened on the night in question.
VAN SUSTEREN: Albert, one of the other issues besides the disappearance of George Smith is that there's this tape out there, this sex tape. Some woman claims that she was sexually assaulted by someone. Explain it to me.
DAYAN: Yes, I'm glad you bring that tape into this forum now only because I think that what happened on that tape was actually manipulated by the FBI. They took that tape and they actually showed it to Mr. Kofman's girlfriend after he had arrived to New York.
I don't believe that there was rape. I believe and I was asked this question does your client regret making that tape? Absolutely not, how can he regret making a tape that actually saved his life.
VAN SUSTEREN: Is the tape showing him having sex with this woman and the others having sex with this woman is that the story?
DAYAN: That is correct. He was actually called into the room after the sexual escapade had begun, but this tape actually saved this young man's life because as a lawyer you understand that this young lady did not need any corroboration. All she had to do was cry out that this was a rape and all these young men that were participants of that sexual escapade would have been arrested. I believe that that tape was the only thing that saved this young man's life.
VAN SUSTEREN: Is the FBI saying that your client is now, having spoken to them, is now cleared or are they saying that he wasn't involved in the sexual assault, not involved in the disappearance of George Smith or aren't they telling you anything?
DAYAN: Well, I don't think the FBI is in a position to clear anyone.
VAN SUSTEREN: But did they give you sort of a nod and a wink and give you an indication?
DAYAN: Well, I think that what the FBI is doing is using the tape, the tape that they purported to be evidence of a rape as leverage into trying to have Mr. Kofman into some sort of cooperation and some sort of an admission to something that was foul play with Mr. Smith's disappearance.
VAN SUSTEREN: All right, Albert, one other quick question. Your client he's back in the United States?
DAYAN: He is back in school. He's back in the United States and he has great sympathy for Mr. Smith's family.
VAN SUSTEREN: All right, Albert, thank you very much for joining us.
DAYAN: Thank you.
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