The former CEO of Waffle House became emotional Wednesday, biting his fingernails and at one point shedding tears, while jury members viewed a sex tape his former housekeeper is accused of secretly recording of him in 2012.
The tape, which the Fulton County Superior Court Judge Henry Newkirk said prosecutors could not keep from the public, is at the center of a six-year-long tangle of civil and criminal litigation that went all the way to the state Supreme Court last year.
Joe Rogers Jr., who now serves as chairman for the Gwinnett-based restaurant chain, took the stand Wednesday to testify against his former housekeeper Mye Brindle, who is accused of working with two attorneys to covertly record herself performing a sexual act on Rogers.
Brindle and her lawyers, David Cohen and John Butters, face charges of unlawful surveillance. Defense attorneys for Brindle have argued she was justified in making the tape as evidence of sexual harassment she’s alleged against Rogers. Rogers has maintained his sexual encounters with Brindle were consensual.
In the tape, filmed in Rogers’ home, a nude, recently-showered Rogers asks Brindle to “pop his back,” and Brindle goes into another room with the camera to retrieve towels. After positioning the camera in that room, Brindle returns to the bathroom, where Rogers can be heard moaning minutes later. Shortly after that, Brindle retrieves the camera and the two go into Rogers’ bedroom and engage in a sexual act. The remainder of the video captures a casual conversation between the two.
In a testimony that took up most of the trial’s second day, Rogers said the encounter shown in the tape was a typical one — Brindle offered to give him massages about six months after he hired her in 2003, and was paid for performing this service in addition to her regular duties.
“It never occurred to me it might be a bad idea,” he said.
During one of these massages, he said, he encouraged her to perform a sexual act on him and she obliged. Rogers told the court he asked Brindle afterward whether she was bothered by the encounter, and she told him she wasn’t, saying she was a “pleaser.”
According to Rogers, Brindle had previously indicated she was attracted to him, and had watched him as he dressed. “I got the sense that she liked that,” he said.
After that first encounter, Brindle’s massages began to frequently include sexual services, with Rogers initiating the contact about 60 percent of the time, he said. These encounters continued after Rogers married Fran Maynard in 2006.
Rogers’ wife, who gave a tearful testimony Tuesday in her husband’s defense, wasn’t in the courtroom on Wednesday, but Rogers said she didn’t know about the affair until he received a letter from David Cohen, Brindle’s attorney who is now on trial with her. The letter encouraged Rogers to pay Brindle a $12 million settlement to avoid media exposure and criminal charges stemming from the sexual harassment allegations she’d made against him.
A sexual harassment lawsuit filed by Brindle against Rogers is still pending in Cobb County. Rogers responded with a counter-lawsuit to have the tape sealed.
Rogers has maintained Brindle never gave him any indication he didn’t have her consent. In fact, when Brindle left a resignation note in Rogers’ sock drawer, addressed to him, that said, “I can no longer bear the pain, humiliation and damage to my well-being from what you have demanded and required of me in this position,” he said he didn’t believe she was referring to their sexual relationship.
In other news:
A few weeks before the tape was made, Brindle retained Cohen and Butters as legal counsel, and the two attorneys consulted the private investigation firm Hawk Professional Investigations for help making the secret recording. Michael Deegan, an investigator who worked for Hawk at the time, said he advised them to go to the police instead.
The attorneys told Deegan they would need proof first or “it would be a he-said, she-said thing,” he said.
Deegan, who expressed concern to Cohen and Butters about whether their plan to record video inside a home was legal, said the attorneys assured him the home wasn’t a private place because it was also Brindle’s workplace.
“I had the understanding that there was an expectation of privacy within your own home,” Deegan said.
Deegan said he briefed Brindle on how to legally make a recording, and among other things, told her to always stay close to the camera to keep within Georgia’s “one party consent law.” This law allows individuals to make audio recordings as long as at least one person in the conversation consents to being recorded – usually, the person doing the recording. That means permission isn’t needed from anyone else in the conversation; however, the law doesn’t apply to video.