Fulton County Assistant District Attorneys Donald Wakeford (left) and Melissa Redmon (Photo: John Disney/ALM)

Prosecutors rested the criminal eavesdropping case in Fulton County against two attorneys and their client Friday over a sex tape made of Waffle House chairman Joe Rogers Jr. and his housekeeper.

But before resting, prosecutors elicited testimony from an Atlanta Police detective who said he reviewed the tape and saw no evidence that Brindle was the victim of a sex crime. A Cobb County judge also previously determined that the sexual encounter appeared to be consensual.

Brindle and her former lawyers, David Cohen and former Cobb County prosecutor John Butters, are on trial, charged with violating Georgia’s eavesdropping law by recording the sex tape. In it, Brindle sexually services a naked Rogers in his bedroom.

Defense lawyers have asked Fulton County Superior Court Judge Henry Newkirk to issue a directed verdict dismissing the charges.

A Cobb County judge disqualified Butters and Cohen from continuing to represent Brindle after Rogers sued them, claiming they attempted to extort him after helping her make the allegedly illegal sex tape.

Police Lt. Carben Tyus, who spent seven years in the department’s special victims unit, said Brindle waited more than three months before she showed up at the city’s Buckhead precinct on Sept. 28, 2012, to report the June 20, 2012, incident.

Defense lawyers have contended throughout the weeklong trial that their clients believed Brindle when she told them Rogers allegedly harassed and assaulted her for years before she recorded the video.

Defense attorneys have attempted to turn the tables by portraying Rogers as having a history of sexual harassment in both his personal and professional life.

In July 2012, Cohen sent a demand letter to Rogers informing him they had recorded evidence of what Cohen described as sexual abuse and assault and threatened ruinous publicity unless Rogers settled the matter quietly.

Brindle’s lawyers later asked for $12 million. Brindle filed her police report only after Rogers and his lawyers shut down settlement negotiations and sued Brindle in Cobb County in September 2012. Her lawyers sued Rogers two days later in Fulton County. Brindle filed a counterclaim in Cobb only after the Fulton suit was dismissed.

Tyus said police attempted to interview Brindle, who referred them to Cohen and Butters.

Brindle, accompanied by Butters and Cohen, finally met with police on Nov. 11, 2012, he said. At that meeting, Cohen said Brindle could not make a statement to police about the alleged crime because of a pending civil lawsuit and a gag order the judge issued.

Tyus also said Cohen told him he couldn’t see the videotape because all copies were collected by the civil trial judge and sealed.

“Without a statement, we could not move forward with the case,” Tyus said.

Tyus also said the initial police report Brindle filed was “not usual” for police, because the narrative was lengthy at more than three pages and referred to Brindle as a “plaintiff” and Rogers as the “defendant.”

“A lot of the terms were lawyer jargon,” he said.

The report was largely “cut and pasted” from a USB flash drive given to the police officer who took Brindle’s complaint, Tyus said.

Brindle’s initial complaint also did not include elements of a crime or any information about whether Brindle ever voiced any objection about the sexual contact. That’s why, he said, police wanted to meet and talk to Brindle.

Tyus said the existence of a parallel civil case does not, as a rule, impede a criminal investigation. “They are often simultaneous,” he said, adding that criminal prosecutions often take precedence over civil cases.

Defense Opens Its Case

On Friday afternoon, defense attorneys for Brindle, Cohen and Butters opened their case in chief by calling a woman who, while working as a housekeeper and nanny for Rogers’ family, had a lengthy affair with Rogers.

Their testimony tracked defense attorney Brian Steel’s Wednesday cross-examination of Rogers, where Steel sought to portray him as a liar who would stoop to anything to get what he wanted.

The defense team has argued throughout the trial that Cohen and Butters were attempting to assist Brindle in collecting evidence of a crime that would support her harassment allegations, meaning they did not break the law.

Montana resident Dawn Tyler, who with her former husband worked for Rogers and his first wife as live-in help, testified that she took a course in massage therapy and that Rogers offered to pay her for massages.

She said Rogers eventually began asking her to massage “underneath his scrotum”—a request she said she ignored and that would convert her from massage therapist to “sex worker.”

Tyler said she ended Rogers’ massage sessions when a tipsy Rogers began tugging at her shirt during massages and slid his hand up the small of her back.

“I was stunned,” she said. “And I was thinking what was occurring couldn’t be what I  thought it was. It must be a mistake.”

“We had such a long history of everything going just fine that I never saw it coming,” she said.

When Steel asked Rogers on Wednesday if he ever asked Tyler to massage his groin area, Rogers replied, “I have never said that to her.”

Tyler said that, after she rejected Rogers’ overtures and abruptly ended the massage session, he “was much colder toward me.”

“He had crossed a line,” Tyler said. “He had let me know I was not the valued employee I had thought.”

Tyler said her desire to quit eventually broke up her marriage. Her husband loved his job working as Rogers’ groundskeeper and house manager.

Former Waffle House executive Ann Parker, accompanied by a lawyer who appeared to have secured limits on her testimony after conferring with the judge and other attorneys, also testified. On Wednesday, Rogers admitted he had an affair with Parker that he claimed she initiated.

“Neither Ann nor I thought we were violating company policy established at the  time,” he said.

Parker was not asked during her testimony about her affair with Rogers. She testified that, after she was deposed in 2013 in the ongoing civil sex tape litigation, Rogers and one of his lawyers asked her to change her testimony.

After she refused, she said Rogers ceased paying her on stock options she cashed in on her retirement, which were supposed to be paid over five years. And, she added, “He mentioned that he might sue me to get what he had already paid.”

Parker said that, two months later, Waffle House outside counsel Nancy Rafuse sent her a letter accusing her of violating medical ethics rules by breaching privilege while a corporate psychologist.

“I did not break privilege,” she said. “I was accused.”

“In my opinion,” she added, “Joe Rogers is arrogant. Joe is someone who doesn’t hesitate to humiliate others. And I have witnessed that Joe uses the leverage of his power to influence others.”

Jimmy Berry, Butters’ attorney, asked if Rogers was the type of person who would take advantage of people under him.

“In my opinion, yes,” Parker replied.