Waffle House sex tapes case: Is your bedroom a private place?

Georgia Supreme Court hears arguments on indictments

Another piece of the litigation surrounding the intimate relationship of Waffle House chairman Joe W. Rogers Jr. and his housekeeper/personal assistant went before the Georgia Supreme Court on Monday.

In this iteration, the state was asking the high court to reinstate felony charges against the housekeeper, Mye Brindle, and her two attorneys, David Cohen and John Butters. The three were indicted on extortion charges after Cohen sent a letter to Rogers informing him that Brindle had secretly videotaped their sexual trysts. The letter recommended that Rogers reach a settlement with Brindle before she filed a suit and exposed their relationship.

Monday's hearing focused on whether a threat to sue may be interpreted as extortion and on whether Rogers' had an expectation of privacy in his bedroom.

A ruling is expected later this year.

Representing Cohen, Atlanta attorney Brian Steel cited case law that says “neither the threat to file a lawsuit nor the filing of a lawsuit constitutes an attempted extortion or a conspiracy to commit extortion.”

Arguing in behalf of the Fulton County District Attorney’s Office, which obtained the indictment of Brindle and her lawyers, F. McDonald Wakeford said Brindle and her lawyers “came up with a plan to break laws in order to bring this lawsuit.”

Wakeford also expressed disbelief about the issue of privacy, particularly in places like a bedroom and a bathroom where the alleged misbehavior occurred.

"To say that these rooms were not private places flies in the face of common sense and decades of Georgia case law," Wakeford said.

He said he disagreed with Steel’s contention that it was not a crime to record what was going on inside Rogers’ home if only one person — Brindle, in this instance — consented to the recordings. Fulton County Superior Court Judge Henry Newkirk made such a finding when dismissing the indictment last fall.

“The state is here to say that the consent of all persons observed in a private place is required in order for the recording of activities to be OK,” Wakeford said, referring specifically to a videotape.

Steel countered that “a private place is defined … as a place where one is entitled to reasonably expect to be safe from casual or hostile intrusion or surveillance.” In his filing with the court, Steel had argued, “A person engaged in an extramarital relationship loses his right to privacy as to the extramarital conduct.”

Justice Harold Melton asked: “Is there any place where people can engage in these activities that would be private, if not in their own home?”

The indictments charging Brindle, Cohen and Butters with conspiracy to commit extortion, conspiracy to commit unlawful eavesdropping or surveillance and unlawful eavesdropping or surveillance. After Newkirk dismissed the case, the Fulton DA's office appealed.

On Sept. 17, 2012, Rogers sued Brindle in Cobb County, seeking to stop her from making the recordings public. Two days later, Brindle sued Rogers in Fulton County, alleging that she had “made audio and video recordings of some of the incidents of sexual harassment and battery including the sexual battery at the Sea Island home.”

That suit prompted Rogers to publicly acknowledge the relationship, saying he had “infrequent sexual encounters” with Brindle. But he denied sexually harassing her.