JACKSON, Miss.—The trial of Ted DiBiase Jr., the former wrestler accused of conspiracy to defraud the U.S. government amid the Mississippi welfare scandal, will not continue until late February after the dramatic exit of DiBiase’s primary defense attorney due to a sudden health crisis.
Scott Gilbert, lead attorney for DiBiase Jr., was last seen in court on Wednesday, Jan. 21, when this reporter witnessed him leaving the courtroom in visible distress. Eric D. Herschmann, lawyer for Brett Favre in an ongoing civil case related to the broader TANF scandal, had already joined the defense team for only a select number of witnesses. But on Jan. 20, he stood to make the defense’s case for a mistrial—or else potentially step into Gilbert’s place.
“Mr. Gilbert’s medical condition is uncertain,” U.S. District Judge for the Southern District of Mississippi Carlton Reeves wrote in an opinion denying a mistrial. “The information before the Court indicates only that his primary care physician has advised him to abstain from his usual work responsibilities for three to four weeks beginning January 16, 2026.”
Herschmann said it was his own intervention that caught Gilbert’s health crisis.
“I saw him and said we need to take a break right now,” he said. “That’s why we took a break. That’s why he was examined by a nurse; that’s why he went to the hospital.”
‘Life Has Overtaken This Trial’
In court, Eric Herschmann explained that Scott Gilbert’s condition was serious enough that there would be no guarantee he could return in two to three weeks.
“No trial lawyer is going to be expected to step into Mr. Gilbert’s shoes in two weeks,” he argued. “I’ve been bombarded with all kinds of documents. (Ted DiBiase Jr.’s) freedom is at risk.”
“Life has overtaken this trial. If I thought that I could adequately continue this trial, I would do it,” Herschmann continued. “Sitting here today, none of us know the future in this circumstance.”
Herschmann argued that he lacked the familiarity with the case necessary to mount a comparable defense and that Sidney Lampton, the other attorney on DiBiase’s defense team, lacked the necessary trial experience. To continue in spite of Gilbert’s absence, he said, would violate DiBiase Jr.’s Sixth Amendment right to his choice of counsel.
But Judge Reeves rejected the defense’s arguments, insisting that Herschmann, Lampton and a potential third attorney of DiBiase’s choice––which the Court itself would pay at a standard rate—were more than adequate for a defense without Gilbert.
Lampton, Reeves wrote, “has been involved in every stage of the defense. She is intimately familiar with the facts and witnesses in this case. In fact … she already planned to examine one-third of the witnesses in this case.”
Herschmann “is familiar with the underlying facts of this case, having represented a codefendant in a parallel civil case,” he continued, referring to Herschmann’s representation of Brett Favre as a defendant in the State’s civil lawsuit over the welfare scandal. He has also represented President Donald Trump in the past.
John Davis Has Cancer, Herschmann Says
While mounting his case that neither he, Sidney Lampton nor any other lawyer appointed in the next month would be adequate to represent Ted DiBiase Jr., Eric Herschmann’s arguments veered into explosive allegations against the government.
He alleged that in a recent sworn deposition, Stephanie Palmertree, once a deputy state auditor, admitted that she “fabricated evidence.” Herschmann further alleged that “the state auditor’s office has admitted they destroyed recordings.” The lawyer did not provide further details on the allegations, and transcripts of Palmertree’s deposition are not public.
The weight of these conditions, Herschmann argued, further complicated any ability for a lawyer other than Gilbert himself to step into the role of primary counsel for the defendant.
“(DiBiase) chose Scott Gilbert,” he said. “And he chose well, amazingly well. Gilbert’s cross-examination of the star witness was so outstanding that in the midst of the cross-examination, the government indicated that it intended to treat its own star witness as a hostile witness on redirect,” Herschmann alleged. “But it also explains why Mr. DiBiase’s choice of Gilbert is his own.”
In the same exchange, Herschmann said that this star witness—former Mississippi Department of Human Services Director John Davis, a central figure in the welfare scandal who has pleaded guilty to state and federal charges—has been diagnosed with cancer and is currently undergoing chemotherapy. Both parties and Judge Reeves acknowledged that Davis’ illness could result in the absence of the government’s key witness against DiBiase during a future retrial should the judge declare a mistrial now.
The government did not respond directly to Herschmann’s allegations, but acknowledged that Palmertree would not be called as a witness for the prosecution in the DiBiase case—a statement Herschmann countered by asserting the defense would simply call her themselves.
Palmertree’s attorney, Melvin Priester Jr., told the Mississippi Free Press that Herschmann’s comments were a mischaracterization and that he wasn’t at liberty to discuss in full.
“My client is subject to a gag order in the state court DHS action that prevents us from talking to the press,” Priester Jr. told the Mississippi Free Press. “I cannot comment beyond saying that we believe that the evidence does not support whatever was asserted by the criminal defendant’s attorney.”
Jacob Walters, a spokesperson for the Mississippi State Auditor’s Office, also rejected Herschmann’s allegations on Jan. 20.
“OSA does everything by the book and Eric Herschmann will say anything to deflect from the fact that millions of dollars in welfare funds were misspent,” Walters said in a statement to the Mississippi Free Press.