Noah Pines and Robin Frazer Clark (Photos: John Disney/ALM) Noah Pines and Robin Frazer Clark (Photos: John Disney/ALM)

The key argument in the just-concluded criminal trial that saw the acquittal of three defendants accused of illegally video recording former Waffle House CEO Joe Rogers Jr. engaged in a sex act hinged on whether they violated a state law barring the surveillance of someone in a place where they could expect to be in private.

Two veteran lawyers who followed the case closely came to sharply different conclusions.

Robin Frazer Clark, a former president of the State Bar of Georgia, said the law supported the verdict because Rogers had asked his housekeeper, defendant Mye Brindle, to join him in his bedroom. 

“The key here is a person can waive or lose an expectation of privacy in his home when he invites someone in his home to perform a sexual assault on that invitee,” Clark said.

Noah Pines, a former prosecutor in DeKalb and Fulton counties whose practice now includes criminal defense work, was stunned the defense won an acquittal: “The law is clear: You need all parties’ consent for videotaping.”

Fulton prosecutors had argued that, if the jury found for the defense, they would be opening the door for anyone to be secretly videotaped by anyone they invited into their home, such as a plumber, a nanny or a babysitter.   

Defense lawyers said that Rogers had given up any right to privacy by summoning Brindle into the bedroom where he waited naked. They also argued that Georgia’s “one-party consent rule”—which allows a person to record a “wire, oral or electronic communication” as long as they are party to the exchange—allowed Brindle to set up the hidden camera, as she had been advised by her then-lawyers and co-defendants, David Cohen and John Butters.

The competing arguments erupted again during deliberations on Wednesday, when the jury asked for a copy of the one-party rule. Judge Henry Newkirk agreed to provide the statute but only over the sharp objections of the prosecution.

Assistant District Attorney Donald Wakeford argued that, if the panel were to be provided the statute, they should also be given the Georgia Supreme Court’s 2017 ruling reinstating the criminal charges after Newkirk had thrown them out.

The opinion said that the one-party rule “applies to intercepted ‘communications’” like telephone calls, not to “observational surveillance such as video recording or photographing” someone without their consent.

After Newkirk’s ruling, DIstrict Attorney Paul Howard arrived and huddled with his prosecutors, who soon filed an “Application for Emergency Stay of Deliberations by the District Attorney.” They asserted that Newkirk had given the jury “clearly erroneous instructions” about the one-party consent rule.

Newkirk declined to recharge the jury, and the state filed an application for an emergency appeal with the Georgia Supreme Court, which directed it to the Court of Appeals.

By the time the appeals court received the application it was too late—the jury had acquitted all three.

Clark, who said the law backed the acquittals, told the Daily Report: “The example the state gave in closings of the plumber coming into your home to perform work missed the mark. Sure, you maintain a reasonable expectation of privacy  in your home when a plumber comes in to do work, but when the plumber comes in your home and you invite him to come into your bedroom and you’re naked and try to have sex with him while he’s there, I think everyone would agree you have waived your expectation of privacy.”

“On the reverse side,” Clark said, “if a plumber comes into your home to work on the basement sink and sneaks upstairs to secretly film the homeowner taking a shower, the homeowner in that scenario has [not] waived his expectation of privacy in her bathroom, and the video surveillance statute would rightfully protect her.”

“That seems to be pretty good common sense,” Clark said, “and the analysis doesn’t violate the video surveillance statute or the one-party consent rule. As juries tend to do, I think this jury got it right.”

Not so, said Pines.

“If you look at the statute, it talks about taping somebody in a private place. Of course your home is private place; otherwise my wife could secretly tape me in my own house,” he said.

“A lot of times in divorce cases, people call and ask me about taping, and I tell them, ‘You can’t videotape them in a private place,’” Pines said.

“For example, if you put up a nanny-cam in the living room, the nanny doesn’t have an expectation of privacy. But if you put one in the bedroom where she sleeps, she does. If you invite me into your office, do I have a right to videotape you without your consent? The answer is no.”

“The defense argument that [Rogers] made it a nonprivate place because he wanted sex—that doesn’t matter. A private place is a private place. His actions don’t change the kind of place it is for constitutional and statutory protections.”

“My hat’s off to the defense,” he said. “The jury may not have liked Mr Rogers, they could have [relied on] one-party consent, or they could just done jury nullification. As an attorney I would never advise a client to videotape somebody without their consent.”