Monday, October 21, 2013 · by Tamara Aparton
San Francisco, CA — A man accused of attempting to have sexual relations with a Bay Area Rapid Transit seat was found not guilty of indecent exposure, San Francisco Public Defender Jeff Adachi announced today.
After deliberating just over a day, jurors on Thursday acquitted 28-year-old Leslie Bailey of the felony charge. The jury hung on a second count of indecent exposure, which was dismissed by the district attorney this morning. Bailey was convicted of lewd acts, a misdemeanor, sentenced to time served and released today, said his attorney, Deputy Public Defender Emily Dahm.
Bailey’s troubles began May 8 after boarding the lead car of a Dublin-Pleasanton bound train at San Francisco’s 16th Street Station. The mid-day train was virtually empty and Bailey chose a seat in the front right of the car, abutting the operator’s cab. The BART operator testified that when she looked back to see if it was safe to close the doors, she noticed Bailey on his knees, thrusting his hips against the BART seat.
Bailey, who appeared not to notice the operator, continued to rub against the seat until the train reached the Civic Center Station. He ran off the train before rushing back on board just before the doors closed. Bailey reportedly returned to the same seat, this time gyrating on his stomach while his feet dangled into the aisle. The operator said Bailey then rolled from his belly to his side and appeared to be masturbating and smoking crack cocaine. She reported the behavior to dispatch, and BART police were alerted.
Bailey exited the train at the next stop, Powell Street Station, and upon noticing the operator, ran to her window, apologized for smoking and begged to get back onto the train. The operator testified that Bailey’s penis was partially exposed beneath his shirt. The BART operator told Bailey to leave and he complied, Dahm said. Responding BART police arrested Bailey a short time later in the station, finding a crack pipe in his possession.
The two counts of indecent exposure stemmed from the alleged masturbation and allegedly exposing himself to the operator on the BART platform after exiting the train.
During the weeklong trial, Dahm argued that Bailey was not trying to direct public attention to himself, an aspect required to convict someone of indecent exposure.
Bailey’s out-of-the-way seat choice, lack of eye contact or conversation with anyone and efforts to remain hidden from public view all served as evidence that the homeless man did not want others to witness his behavior.
“The law is very clear that indecent exposure requires making an effort to be seen. Mr. Bailey thought he was having a private moment—unfortunately, he picked a really inappropriate place,” Dahm said.
An expert in addiction and pharmacology took the stand, testifying that Bailey had been prescribed anti-psychotic medication that he had not been regularly taking and was binging on cocaine at the time of the incident. High doses of cocaine cause delirium and can make users unaware of their surroundings and misperceive their own behavior, he testified.
Dahm argued that Bailey was unaware his genitals were visible when standing on the platform. BART failed to preserve video from the platform and the train, Dahm said.
Adachi said the verdict allows Bailey to seek help for his mental health issues.
“Mr. Bailey’s actions stemmed from a mental health crisis and not a desire to hurt or scare anyone. Thanks to his public defender, he is now free to address his issues,” he said.