Georgia Justices Consider If Lawyer's Demand Letter Is Criminal
ALM Media
Updated
The 2012 demand letter that Marietta attorney David Cohen sentto Waffle House Chairman and former CEO Joe Rogers Jr. in 2012 onbehalf of Rogers' longtime housekeeper, Mye Brindle, was harsh. Atissue before the state Supreme Court on Monday was whether Cohencommitted a crime.
"The long history of unwelcome sexual demands and other sexualharassment and abuse toward Ms. Brindle as a condition of heremployment is something for which you are well familiar," Cohenwrote. "The fact that the actions were committed is undeniable andwell documented by numerous audio and video recordings of the acts,as well as other evidence," he added.
IfRogers didn't settle, Cohen suggested, he could face mediaattention, additional litigation, shareholder demands for hisremoval, federal investigations, potential civil or criminalcharges, or divorce. "I have not been involved in any matters wherethe same problems resulted to any defendants that promptly andfully addressed the issues prior to the initiation of litigationand public focus on the issues," Cohen concluded.
Whether Cohen's letter morphed into acrime was argued before Georgia Supreme Court on Monday. Thejustices will decide whether Cohen, co-counsel John Butters andBrindle, their client, can be charged with illegally conspiring toextort money from Rogers. The court was also asked to decidewhether any alleged involvement by the two attorneys in Brindle'sdecision to surreptitiously videotape a 2012 sexual encounter withthe married Rogers in the bedroom of his home shortly before Cohensent the demand letter violated the state's criminal surveillancestatute.
One year ago, Brindle and her lawyers werecharged with conspiracy to commit theft by extortion andmultiple violations of the state surveillance law. But lastNovember, Fulton County Superior Court Judge Henry Newkirk dismissed theindictment, declaring as unconstitutional the laws on which itwas anchored. The district attorney appealed.
On Monday, lawyers for the state and the defendants agreed atthe high court that the indictment of Cohen, Butters and Brindle onthe extortion conspiracy charge marked the first time since thestatute was enacted 48 years ago that a felony prosecution has beenbased on a demand letter written by a lawyer.
Rogers' counsel, Marietta attorney Robert Ingram, says that,when Rogers received Cohen's demand letter in July 2012, Ingramimmediately contacted Fulton County District Attorney Paul Howardabout what he and his attorneys contended is an extortion letterbased on an illegal video recording.
Ingram also said that despite Cohen's assertions of multiplerecordings, only a single tape of a sexual encounter betweenBrindle and Rogers ever materialized. That video has been sealed bya Cobb County judge who determined in a 2013 pretrial order that itdid not appear to show that Brindle had acted against her will.Last year that judge, Robert Leonard, recusedfrom the Cobb County casepart of a growing tangle of civil andcriminal litigation involving Rogers, Brindle and her lawyers thatafter five years has yet to be resolved.
The letter, which several justices wanted to review, wasinexplicably omitted from the appellate record, although it is partof the court record in the ongoing civil litigation.
Justice Harold Melton pronounced the court "at a disadvantage"because the letter "is front and center of the extortion claim."Melton wanted to know whether any of the potential consequencesthat Cohen had threatened were outside the scope of consequencesthat might naturally stem from a lawsuit. He also wanted to knowwhether the letter indicated that Cohen himself intended to makethe sexual allegations public if Rogers refused to settle privatelyor whether "if they filed a lawsuit, publicity naturallyfollows."
"What did they say expressly they would do besides filing alawsuit?" he asked. "We don't have the language of the letter tolook it. It makes it very difficult."
Fulton County Assistant District Attorney Donald Wakeford, whodefended the indictment, argued that because Brindle's decision tosecretly videotape a sexual encounter with Rogers was illegal, andthe demand letter was based, in part, on securing that tape, theletter morphed from a constitutionally protected demand for redressof an alleged grievance into criminality.
By dismissing the indictment, Wakeford said, the trial court had"reached the conclusion that the alleged behavior of [Cohen,Butters, and Brindle] was not criminal but so sacrosanct and drapedin constitutional protections that it required the undoing of threestatutes and a redefinition of privacy."
"So what exactly is the line?" asked Justice Nels Peterson. "If,in creating the record for a future lawsuit, you break any sort ofcriminal law and then you send a demand letter, even if it's themost reasonable demand letter in history, that's criminalextortion? Did the letter refer to the video at all? What did itsay?"
The justices also engaged in a lively colloquy with Cohen's leaddefense counsel, Brian Steel, over why his client's letter wasn'tan extortionate demand and why Rogers could be secretly videotapedin the privacy of his own home without violating the state statutebanning videotaping in "any private place or out of public view"without all parties' consent.
"Neither the threat to file a lawsuit or the filing of a lawsuitconstitutes extortion or conspiracy to commit extortion," Steelcontended. "Being aggressive, being belligerent is not extortion ifit is a true lawsuit and not baseless." To rule otherwise, he said,would have "a chilling effect on any lawyer who wanted to file aclose lawsuit."
Steel also argued that Rogers' bedroom, where his sexualencounter with Brindle was taped, could not be considered privatebecause Rogers' home was Brindle's workplace; she was an employee;and her duties included folding and putting away laundry in thebedroom.
"Any time you invite another person into your presence, you loseyour Fourth Amendment [right to privacy] protection?" asked JusticeDavid Nahmias.
"Correct," Steel replied.
"What if a third party taped it?" Peterson asked. "If there wasnot a reasonable expectation of privacy in the bedroom becauseanother person was there, what's to stop a conclusion that a thirdparty could have taped it?"
"It's private as to other people," Steel replied. "It's notprivate as to the invitee [Brindle] and Mr. Rogers."
