Jailed Marine's attorney: The judge will believe his story

This is a rush transcript from "On the Record," July 10, 2014. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Mexican judge orders a U.S. Marine back behind bars. And tonight, only right here, you will hear from the Marine's lawyer.

Sergeant Andrew Tahmooressi fighting for his freedom in a grueling nine-hour court hearing yesterday. The Marine finally telling the judge his side of the story. Sergeant Tahmooressi was arrested for making a wrong turn at the border and carrying guns in his truck. But that was 102 days ago. Right now, the Marine is still stuck in that Mexican prison. So did the court hearing bring him any closer to freedom?


FERNANDO BENITEZ, ATTORNEY FOR ANDREW TAHMOORESSI: We've got a chance to get my client's statement.

JILL TAHMOORESSI, MOTHER OF ANDREW TAHMOORESSI: He is very strong and positive. And is he confident.

BENITEZ: There are multiple irregularities with the order to search his vehicle. He had not an adequate translator present. He was not afforded a right to counsel. The counsel general of the United States was not notified.

TAHMOORESSI: We're optimistic about the future.

UNIDENTIFIED NEWS ANCHOR: His next court date is set for August the 4th.

BENITEZ: We feel confident that we will get a favorable ruling.


VAN SUSTEREN: And just a short time ago, we spoke with the Marine's lawyer, Fernando Benitez, in Tijuana.


VAN SUSTEREN: Fernando, nice to see you.

BENITEZ: Hi. Good afternoon. Thank you for having me.

VAN SUSTEREN: Yesterday -- how was your client in court yesterday?

BENITEZ: Well, he started off pretty upbeat. He was straightforward. He talked at length and in detail about everything that happened on the 31st of March. I think he was very candid about everything. But from maybe the last part of the hearing, it was pretty boring for him, maybe, the cross-examination of the witnesses. It was time-consuming because it was all being translated simultaneously. But, all in all, I found him to be in good spirits. And the judge actually allowed some visitation time from Jill with him in private at the hearing room after the hearing was over.

VAN SUSTEREN: What was the most potent or worse evidence presented by the prosecution against him? What hurts his case?

BENITEZ: At this point, only -- the only thing hurting his case is that the early stages of it were not exploited enough, I believe. Right now, we have a lot of evidence that the arrest is tainted by several serious human rights violations. The further we go into evidence, into that topic, the more clear it will become, I believe.

VAN SUSTEREN: Was there any evidence presented by the prosecution that it was anything about an accident that he turned into Mexico, and is there anything to suggest that he had any intent to violate the laws of Mexico?

BENITEZ: Well, up until yesterday, the evidence in the case file could suggest that he was willingly coming into Mexico. But, from his statement yesterday and towards the future, he has already clarified in extreme detail. And I believe the more we advance with the hearing of evidence to support that, the clearer it will become.

VAN SUSTEREN: Did the prosecution have any evidence that contradicted what he said, meaning that it was -- that anything to show that he had been in Mexico to do something bad, to violate the law? Anything -- any contradiction of his statement?

BENITEZ: It's all really based on presumption. And they have some records of his booking a hotel and they have records of three previous entries into Mexico. But none of them really destroy our theory that he came into Mexico by mistake on the 31st. Because he might have been previously here three times, but it was on foot. And the one time he did come in a car, he was a passenger. So, again, he had no experience in navigating the streets that would take him into Mexico. I believe his story, and I think that the judge will believe it, too, as soon as we support it with more evidence. But it's going in that direction, definitely.

VAN SUSTEREN: Do you think that -- did you have a chance to he see all the prosecution evidence or was there any time like when the prosecution might have met privately with the judge, that the judge might have different information than you have?

BENITEZ: No. No. No. No, no, no. It's all disclosed. It's all in the case file. As soon as something is entered, the defense is made aware immediately in writing of that entrance into evidence. So, no, there are no surprises here. We knew what we were up against. We just didn't know - - the only thing I didn't know personally was the extent to which the human rights violations had come to during those seven to eight hours that he was held at the customs point of entry. That became ever so clear yesterday. I got a sense that the prosecutor wanted to prove that Andrew had been here before. But even if that's the case, which it is, it doesn't preclude the possibility of him making the mistake that he made.

I have been a resident of the border for more than 40 years, and I have made that mistake many a time. Many residents have made the same mistake Andrew did, and we can relate to that. So it has no bearing whether or not he was in Mexico before. It doesn't mean a thing to our case. It will not destroy our evidence, not by a long shot.

VAN SUSTEREN: Any other questions that the prosecutor asked that in any way sort of at this point you off. After the hearing was over, did the prosecutor pull you aside and say something like, well, you got a great case or you have got a lousy case or say anything at all that sort of gives you a sense of what is going on in the prosecutor's mind?

BENITEZ: No, the prosecutor had a stone face the entire time. He never opened his mouth until it was time for him to make his questions and he said nothing. Although, I did get a sense that he was not enthusiastic. I didn't see any enthusiasm in what he was doing.

VAN SUSTEREN: Who was his witness? The prosecutor's witness?

BENITEZ: He got a chance to cross-examine my witnesses, but those witnesses were actually the prosecution's during the initial phases of the trial. They were witnesses to the entire arrest and customs procedure. And I just called him in to question him by the defense. And he got a chance to cross-examine, but we didn't get into anything important on his part.

VAN SUSTEREN: Was he shackled or behind bars in this hearing or is he sitting next to you at like a council's table?

BENITEZ: He is behind bars but he is not shackled.


VAN SUSTEREN: And we talked a lot more with the Marine's lawyer. And you can see the rest of our interview. Just go to GretaWire.com.