David Cohen (left) and John Butters (Photo: John Disney/ALM)

Two attorneys and their client—the former housekeeper for the chairman of Waffle House—are on trial this week in Atlanta on charges that they violated the state's eavesdropping law by recording a secret sex tape.

A jury was seated Monday in the trial of John Butters, a former Cobb County assistant district attorney, and Marietta lawyer David Cohen over a sex tape that their client and co-defendant, Mye Brindle, recorded during an encounter at the home of Waffle House chairman and then-CEO Joe Rogers Jr.

That sex tape, sealed by judges in two counties in 2012, was the basis for a demand Butters and Cohen made suggesting that Rogers pay his housekeeper $12 million to keep quiet over claims he repeatedly sexually harassed her or else face a civil lawsuit and potentially ruinous publicity.

Court records described the recording as depicting Rogers shaving nude in his bathroom and then lying on his bed as Brindle manually serviced him.

Rogers and his civil lawyers at Marietta firm Moore Ingram Johnson & Steele have aggressively combated Brindle's claims, suing her and her lawyers and lobbying for criminal charges against the trio in what has become a tangle of civil and criminal cross-claims and litigation that shows little sign of resolution after six years. Rogers has not denied the June 20 sexual liaison but has claimed it was consensual.

In 2016, Fulton County District Attorney Paul Howard's office waded into the civil dispute, securing a four-count felony indictment accusing Butters and Cohen of conspiracy to commit extortion, conspiracy to commit unlawful surveillance and unlawful surveillance.

Georgia law makes it a crime for any person through the use of any device, without consent of all persons observed, to photograph or record the activities of others that occur in a private place out of public view. The only exceptions are for people in prison or in jail and property owners who install cameras for security purposes.

Fulton County Superior Court Judge Henry Newkirk, who is presiding over the criminal trial, initially threw out the indictment, only to have the Supreme Court of Georgia reinstate the eavesdropping charges last November.

In affirming Newkirk's dismissal of the extortion conspiracy charge, the high court ruled that Cohen's demand letter warning of a potential civil suit using the sex tape as evidence, though aggressive, did not rise to the level of a criminal threat.

But the high court also ruled that, although Georgia's eavesdropping law only requires one-party consent, it only applies to oral, wire and electronic communications, not video recordings.

At a pretrial hearing in February, Newkirk told prosecutors and defense lawyers that he felt strongly that the case should have “a universal agreement and settlement.”

The high court's other rulings in the competing civil litigation and their multiple appeals have not favored Butters and Cohen, but the defense argued again Tuesday to have counts dismissed before opening statements were scheduled to begin.

Last Thursday, the high court declined Cohen's motion for reconsideration of its earlier ruling upholding nearly $200,000 in legal fees awarded to Rogers. Former Fulton Court State Court Judge Susan Forsling had directed that Rogers' fees be paid after holding in 2013 that Brindle's sexual harassment lawsuit, filed in Fulton County just two days after Rogers sued her first in Cobb County, was frivolous.

Rogers sued following failed negotiations associated with Cohen's initial demand letter on Brindle's behalf. Forsling ruled that Brindle should have filed a counterclaim to the Cobb suit.

The high court last year also upheld a Cobb County judge's decision to disqualify Cohen and Butters as Brindle's counsel in the civil suit. Cobb County Superior Court Judge Robert Leonard, who later recused from the civil case, disqualified the lawyers after determining their attorney-client privilege could be pierced over the production of the videotape. In that order, Leonard said the videotape, which he reviewed, “makes it clear that defendant was a willing participant in the sexual encounter and is not the victim of a sexual battery.”

Two private investigators may be key to the prosecution's case.

Thomas Hawkins, owner of Hawk Private Investigations Inc., and investigator Michael Deegan said in civil depositions obtained by the Daily Report that they balked when the lawyers asked for help in securing video evidence to document Brindle's claims.

According to the two investigators, they met with Cohen and Butters two days before Brindle retained the lawyers on June 6, 2012, and three weeks before she made the sex tape.

The investigators are represented by former Georgia Gov. Roy Barnes.

But in a pretrial hearing in February, Cohen attorney Brian Steel sought to portray Brindle as a vulnerable, single mother who repeatedly was lured into situations where Rogers forced her to submit to unwanted sexual advances.

Steel contended that, as a victim of an alleged sexual predator, Brindle was legally justified in surreptitiously recording what he claimed was a criminal act. Rogers has not been charged with a crime tied to Brindle's allegations.

Rogers' wife, Fran Rogers, told the Daily Report in February that she believes Brindle intended to play on Rogers' fears that his wife would find out about the affair.

“Their hope was Joe would be embarrassed and that he would pay them money for their silence,” she said. “Their worst nightmare was when Joe told me. They lost what they thought was their leverage.”