Assault charge dismissed against Hamilton Co sergeant fired for kicking handcuffed inmate in head

Published: Aug. 20, 2021 at 11:11 AM EDT|Updated: Aug. 20, 2021 at 1:11 PM EDT
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WARNING: Some viewers may find the video disturbing.

CINCINNATI (FOX19) - An assault charge was dismissed Friday against a former Hamilton County sheriff’s sergeant fired last year after he was indicted for kicking a handcuffed inmate in the head when the inmate bit his foot.

A Cincinnati city prosecutor requested the misdemeanor charge be dropped, at least for now, against Jesse Franklin when he appeared for the start of his bench trial in Hamilton County Municipal Court.

“Your Honor, at this time, the state is unable to go forward today,” a city prosecutor, Sue Zurface, told Judge Bernard Bouchard. “We recently had an issue with regard to the expert that we had retained for this matter.”

....”we’ve been unable to secure an expert witness and we would need a period of three weeks just for the purpose of disclosing the report to defense counsel. We’re unable to do that within, what we believe to be, a reasonable amount of time given the fact that there could be a different time calculation on this matter.

“We’re, obviously, arguing our position with regard to speedy trial here. At this time we would be unable to go forward with this case today. We would ask that it be dismissed for want of prosecution with the intention that we will be refiling this matter.”

“O.K.,” Judge Bouchard responded. “So you’re asking this to be dismissed for want of prosecution?

“Yes, Your Honor,” Zurface told him.

“O.K.,” the judge responded.

We reached out to the city prosecutor’s office for comment and were put into the voice mail of a city spokesman.

We left a message and will update this story if we hear back.

“The case was dismissed apparently because the prosecutor was having difficulty getting a use of force expert witness,” Franklin’s attorney, Mike Allen, tells FOX19 NOW.

Allen declined further comment on the entire case.

Franklin, 39, has pleaded not guilty.

He was terminated from the sheriff’s office in June 2020.

The sheriff at that time, Jim Neil, said as soon as he found out about the incident, he suspended Franklin’s police powers and ordered an investigation.

The probe determined Franklin used excessive force by kicking the handcuffed inmate, Nicholas Ballachino, in the head, Neil said in a statement at the time.

“As Sheriff of Hamilton County,” Neil said last year, “I am outraged and shocked by this egregious conduct. These actions are inconsistent with our training and will not be tolerated under my watch.”

Franklin faces up to 6 months in the Justice Center if he is convicted.
Franklin faces up to 6 months in the Justice Center if he is convicted.(WXIX)

According to Hamilton County Prosecutor Joe Deters, Ballachino was arrested for disorderly conduct while intoxicated and obstructing official business and taken to the county jail on June 9, 2020.

When deputies and Ballachino arrived, he “became combative” with the officers trying to process him, Deters said.

While the officers were trying to subdue him, Ballachino bit Franklin’s left foot, according to Deters.

Video from the Hamilton County Justice Center shows Franklin immediately kicking Ballachino one time in the head after he bit him, Deters said.

Ballachino was taken to University of Cincinnati Medical Center, treated and released back to the jail.

He was convicted of the obstructing official business charge, and the disorderly conduct charge was dismissed, court records show.

Last month, Ballachino, 48, of Delhi Township, sued Franklin, alleging his civil rights were violated, and on account of assault and battery. He was handcuffed and face down during the incident. the suit alleges.

The sheriff’s office and Hamilton County Board of Commissioners also are named in the litigation.

It states the policies and customs of the sheriff’s office are the reason behind Franklin’s excessive use of force:

“Defendants Hamilton County and former Sheriff Neil had knowledge prior to this incident of committed similar acts by Defendant Officers, particularly numerous incidents committed by Defendant Franklin. Defendants Hamilton County and former Sheriff Neil have refused or otherwise failed to adequately discipline all individual deputies involved in this incident.”

In the county and sheriff’s office written response to the case in court records, they admit Franklin was fired “for violation of department rules and for the use of excessive force” but deny the other allegations.

We reached out to Ballachino’s lawyers and representatives for the sheriff’s office and county commissioners.

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