Waffle House chairman Joe Rogers Jr.'s wife testified Tuesday that their housekeeper's job performance began to deteriorate a year before she made a secret sex tape with her boss.

Fran Rogers said that, by April 2012, Mye Brindle was shorting her hours, spent much of her time on her computer and was shirking duties. Rogers said that whenever she discussed her job performance with Brindle, she would get better for a while, but it never lasted.

By 2012, Rogers said she began raising questions about Brindle's expense reports and that Brindle began asking for advances even as her job performance continued to slide. She soon discovered that Brindle was having financial difficulties.

But Brindle remained employed until she left her resignation in Joe Rogers' sock drawer in June 2012, Fran Rogers said. That was shortly after Brindle secretly videotaped a sexual encounter with Roger's husband.

That sex tape is the basis for criminal charges Fulton County District Attorney Paul Howard's office filed against Brindle and two attorneys she hired, Marietta attorney David Cohen and former Cobb County prosecutor John Butters. The trial opened Monday.

Assistant District Attorney Melissa Redmon told the jury that, as Brindle's relationship with Fran Rogers grew more contentious and her job appeared in jeopardy, Brindle and her lawyers “hatched a plan to catch Mr. Rogers in the act,” then use it as the basis for a future lawsuit.

Fulton County Superior Court Judge Henry Newkirk on Tuesday dismissed a felony eavesdropping conspiracy charge against Butters, Cohen and Brindle related to that sex tape. But Newkirk left in place two felony charges for a jury to decide. One accuses Cohen, Butters and Brindle of violating a state eavesdropping law banning video recordings in a private place. The second eavesdropping charge names only Brindle.

Newkirk made his ruling from the bench after the selection of a 12-person jury and two alternates Monday evening.

The ruling came after Atlanta defense attorney Brian Steel, who is defending Cohen, argued the entire indictment should be set aside.

Steel argued the indictment does not cite sufficient specific information to inform the defendants of exactly what charges they were facing or on what a county grand jury ultimately based its indictment.

Butters is represented by Marietta defense attorney Jimmy Berry and Bruce Morris of Atlanta's Finestone Morris & White. Brindle is represented by Marietta lawyer Reid Thompson.

Newkirk's decision to dismiss the conspiracy charge against the two attorneys and Brindle follows his decision in 2016 to dismiss the original indictment. Last November, the Supreme Court of Georgia affirmed Newkirk's decision to toss the extortion count but reinstated what were then three eavesdropping charges.

During Tuesday's openings, defense lawyers contended that Brindle is a victim whom Joe Rogers had required to stimulate him sexually as an unofficial, but expected part of her job.

“She made a decision that too many women have to make,” said Thompson, Brindle's attorney. “Do what the boss requires you to do. It was unwanted. … There was no love. No passion. No cuddling. No kissing. … It was just another chore for the maid to do.”

Brindle decided in 2012 to record one of those sexual encounters because “Joe Rogers is a very wealthy man, a very powerful man and very well connected,” Thompson said.

Steel contended in his opening statement that Brindle was a sex abuse victim and that Rogers had no expectation of privacy when he invited her into his bedroom to engage in an adulterous relationship. He said Cohen, as a lawyer, accurately concluded that Brindle had the right to record Rogers without his knowledge under those circumstances.

Cohen gave Brindle “proper legal advice” in good faith, Steel said.

“David Cohen did not deserve this,” he said. “He did nothing wrong. He gave the correct legal analysis with the fact pattern presented.”

Berry also emphasized that Rogers is “a rich and powerful man” whom Brindle so feared that she initially would not give the lawyers his name.

Berry said Brindle told Butters “I am afraid of him [Rogers]. Everybody knows him. I'm a nobody. Who's going to believe me?”

“John Butters believed her,” Berry said. “David Cohen believed her. They listened to her story.  They believed what she told them. … For that they are sitting here … charged with a crime because they were doing what they thought was the right thing to do for their client.”