• With: Fernando Benitez, Attorney for Sgt. Andrew Tahmooressi

    This is a rush transcript from "On the Record," July 4, 2014. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: After two tours on the battlefields of Afghanistan, the U.S. Marine now fighting a very different kind of battle, a legal one with a foreign government, our ally Mexico. And after spending three months in a Mexican jail, Sergeant Andrew Tahmooressi now has a third new lawyer. He's Fernando Benitez and he joins us from Mexico. Nice to see you, sir.

    FERNANDO BENITEZ, SERGEANT ANDREW TAHMOORESSI'S ATTORNEY: Thank you, Greta, good afternoon.

    VAN SUSTEREN: Good afternoon. Do you have a sense -- many people in the United States who are very upset that our U.S. Marine who many believe accidentally ended up never, never intended to violate your laws, never wanted to violate your laws but that three months later, he's in prison. Is that -- are people aware of that down in Mexico, do you think?

    BENITEZ: Yes, well, I can say I'm aware of that. And I believe that to be the case. And that's the reason I decided to take on this case.

    VAN SUSTEREN: Do you think that the government is aware? I mean, do you hear --- is the prosecute talking to you about it or the judge talking to you about it and saying anything about the case to indicate that it has any sort of high profile nature.

    BENITEZ: Certainly there's a lot of awareness about the case which I think is good. There's also a sense of urgency to some extent. We feel it at my firm. We're trying to deal with this quickly but again, have we had a chance to sit down and talk with the judge, the prosecution and myself, no. We're precluded from discussing the case outside of court so we have not done so.

    VAN SUSTEREN: Well, on of the things that has sort of, you know, rubbed many Americans the wrong way is that in early June, four Mexican police officers, I guess they were in hot pursuit ended up in the United States with their guns, violating our laws and they were detained two days, we straightened it all out and then we sent them back. So, there are lot of people are thinking what about our marines.

    BENITEZ: OK, I don't think -- I can understand why, from a public perspective they would feel that way, but I don't think the analogy is very fair because of different things altogether to be crossing the border accidentally in the desert, in the middle of the desert whether there are no landmarks or anything for you to know you that you've crossed the border, as I said, in a disserted area. And it's very different to drive inside secondary inspection of the port of entry at the customs point or check point. It's different. I don't think the analogy applies. However, this is something I feel strongly about. I think this case besides being about Andrew Tahmooressi is going to be an opportunity afforded to our political leader on both sides of the border to review border policy and maybe enact a specific protocol to deal with these types of cases. This happens very frequently in the Tijuana San Ysidro border. It happens a lot. I`ve handled cases like this many a times. And the outcome is sometimes slow, but it will ultimately be the same. Things will get straightened out and the truth will come out.

    VAN SUSTEREN: Fernando I'm totally with you. This is a great opportunity to abide. Where I disagree with you is that the police accidentally entered United States. And I will say that I`ve driven that road with Sergeant Tahmooressi and when he made his accidental turn, he had no choice either both were accident, both were maybe we ca say negligence, perhaps Tahmooressi should have seen the signs, maybe the police should have know where the border is. Both were accident. It's just a lot of Americans are thinking, well, you know, how about it? How about speeding this thing up? We're not asking for special treatment, only that he gets consideration so that he can present his case and get out of there and come home.

    BENITEZ: I think the venue for dealing with this in a more timely fashion has passed. When I got the case a couple opportunities had already passed. I think we had a great opportunity at the federal prosecutor's office which nobody was able to take advantage of. I think we had a very good opportunity within the first six days before the federal judge, before he even handed down the order to stand trial. But no evidence was submitted nor entered.

    I think we had a great opportunity, if anybody had taken the time to appeal the order to stand trial and we would have had a review of the arrest procedure and whatnot. But again, when I got the case that was all water under the bridge. So, it's a shame that's the case, but, again, I would try to say, in Andrew's case, I believe what happened to him. It's happened to me. I've crossed the border and realizing at the very last minute, I forgot to stop at the bank or something and then had to cross all the way through because there's no exit. And the exit is not on the right side of the freeway where one would logically expect it to be. But rather it's on the left side. And it's a U-turn. And there are concrete barriers that make it impossible to cross the four lanes and get to the U-turn. There were no signs there at the time. Now there's a huge sign with lights, with lettering and you can't miss it. But, in March, there was no sign.

    So, I believe in his version of the fact the exit he took from San Ysidro to the freeway is south of the last U.S. exit. So, there are no more chances to go back, even if you wanted to. So, I completely understand what happened to him. It's happened to me, as I said. And I would venture to say that most border residents have experienced something along those lines in the past when coming back. But, we need to get evidence to support that into court. And there's still no evidence there. So, you know.

    VAN SUSTEREN: And, Fernando, I want to thank you. I just wanted to say one thing. I'm impressed as a lawyer myself, it's always so much harder to be the third lawyer and when you have to fix other's mistakes, it is three times, four times, five times more difficult than being the first one. Indeed it is. So, I wish you the best of luck. Thank you.

    BENITEZ: Thank you so much.