An attorney for the only defendant yet to face a criminal trial in the seemingly never-ending Mississippi welfare fraud case has asked a federal judge for a mistrial after the team’s lead lawyer fell ill last week. 

The trial for Ted “Teddy” DiBiase Jr. was in the middle of its second week when the lead defense attorney, Scott Gilbert, experienced a health issue halfway through the day Jan. 14. Gilbert was in the middle of cross examining former Mississippi Department of Human Services Director John Davis – the former director’s fourth day on the witness stand – but never faltered in his questions before court stopped for a lunch break.

U.S. District Court Judge Carlton Reeves did not immediately make a decision Tuesday on how to proceed with the case, opting to ask each juror whether they are available in February and how a pause in the trial may affect them. He said he will make a ruling on the motion for a mistrial shortly. If granted, the parties acknowledged that a new trial would be scheduled, possibly several months from now.

DiBiase is facing 13 criminal counts including conspiracy, wire fraud, theft of federal funds and money laundering in a broader alleged scheme to raid the state’s federal public assistance agency. He received roughly $3 million in federal funds from the agency through what prosecutors call  “sham contracts,” while DiBiase argues he was a lawful contractor. 

Another lawyer added to DiBiase’s defense shortly before trial, Eric Herschmann, made the case for a mistrial. 

He argued that DiBiase has a constitutional right to choose his own counsel and that the defendant has been working with Gilbert for nearly six years. The federal government first moved to seize DiBiase’s million-dollar Madison mansion – which it alleges was purchased with welfare funds – in 2020, though he was not indicted until 2023.

Herschmann said DiBiase chose well by selecting Gilbert.

“Mr. Gilbert’s cross examination of the government’s star witness was so outstanding that in the midst of the cross examination, the government indicated it was going to treat the star witness as a hostile witness on redirect,” Herschmann said.

When a party to a case treats its own witness as hostile, it generally means the witness gave testimony that was unfavorable or unexpected to that party’s case, and in turn, counsel may use strategies to get the witness to contradict or even impeach himself or herself on the stand.

Herschmann was referring to Davis. The prosecution first called Davis on Jan. 9 in its effort to build a case – using many long, sentimental text messages between Davis and DiBiase – alleging the wrestler ingratiated himself with the then-welfare director in an attempt to strike it rich off the federal public assistance program. 

The defense began questioning Davis on Jan. 12, displaying documents and social media posts to assert that DiBiase intended to carry out the services he was contracted to provide. Davis’ testimony supported many of Gilbert’s points, such as the fact that the men did not try to conceal what they were doing.

Herschmann told the judge Tuesday that he observed Gilbert’s condition during trial last week and recommended the team take a break. He said Gilbert soon visited a hospital. Herschmann said the team doesn’t expect to learn more about Gilbert’s outlook for roughly four weeks.

DiBiase is also represented by Sidney Lampton, whom Herschmann argued does not have the jury trial experience required to lead the case. Only Gilbert currently has the experience and knowledge to adequately lead the case that involves 6 million pages of records, Herschmann argued. He said preparing a new attorney could take months.

The government argued against the request for mistrial, saying DiBiase’s remaining lawyers are capable of trying the case and delays could jeopardize the testimony if witnesses become unavailable. It was divulged that Davis, for example, is currently undergoing treatment for cancer.

Herschmann, a former senior advisor to President Donald Trump, is involved in the Mississippi welfare fraud case by way of former NFL quarterback Brett Favre. 

Herschmann is representing Favre in a broader civil case that the state welfare department is bringing against dozens of people or entities that improperly doled out or received federal funds. Favre has not been charged criminally.

That litigation has dragged on since 2022. In recent months, Herschmann and the lawyers for other defendants in the case took a deposition from a former deputy state auditor, Stephanie Palmertree, who conducted the original audit exposing the misspending. There is a gag order in the civil case that many parties to that litigation have said prevents them from speaking to the media about the case. 

Palmertree left the auditor’s office to form her own accounting and consulting firm in early 2024 and DHS hired Palmertree in her new capacity to be the expert witness in the civil suit. After the deposition, and just before DiBiase’s trial, DHS filed to withdraw her as its expert witness. 

Herschmann said during his argument Tuesday that he, in Gilbert’s recent absence, worked throughout the weekend to sift through discovery in the DiBiase case.

He alleged he found conflicting information within the materials, such as transcripts, produced in the criminal case, which he recently joined, versus the civil case he’s been immersed in for years.

Without any more detail, and referring to Palmertree, Herschmann said, “She swore under oath that she fabricated evidence to the federal government.” 

In the DiBiase trial, Herschmann was expected to call Palmertree to the stand to question her handling of the audit – a long point of contention for Favre’s camp. Favre has denied the auditor’s office’s claim that Favre entered an agreement to give speeches in exchange for $1.1 million in payments from a nonprofit at the center of the scandal. Mississippi Today obtained and analyzed the agreement in 2022.

Palmertree’s attorney Melvin Priester Jr. said that because Palmertree has been called as a witness in the case, she cannot comment on Herschmann’s remarks other than that she stands by her audit.

“Any implication that she has somehow made a material misrepresentation is a mischaracterization of the evidence,” Priester said.

Herschmann also said the auditor’s office had admitted to destroying recordings. He suggested to Reeves that the criminal case requires a probe into these matters. 

Reeves asked the lawyer why this type of analysis hadn’t been conducted in DiBiase’s case up to this point. Herschmann said another lawyer is representing DiBiase in the civil case and the attorney had not requested a transcript of Palmertree’s deposition.

Reached for comment, auditor’s office spokesperson Jacob Walters said in a text, “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.”