Attorneys ask judge to compel Naperville police to release records in abuse case

Attorneys for a teen accusing a Naperville man of sexual abuse are asking a judge to compel police to hand over their records on the case.

The teen’s attorneys, Jeff Tomczak and John Partelow, filed a motion Oct. 24 to compel Naperville police to comply with a subpoena asking for records on their investigation of Matthew Herzberger, 19, who allegedly sexually abused her.

The subpoena was served to Naperville police on July 24 and has yet to be fulfilled, according to the motion. On Sept. 10, a police records manager told the attorneys they are withholding the records because they are part of a criminal case against Herzberger and they want to “avoid any possibilities of a deprivation of a fair trial.”

Naperville police Cmdr. Robert Lee failed to return calls for comment.

Tomczak said there are number of Snapchat videos in the police department’s possession. The girl’s lawsuit against Herzberger alleged when he sexually abused her, he created a video and still images of her “for his own sexual gratification” and distributed them on the internet through a Snapchat account.

“We want to get moving forward on the civil case,” Tomczak said.

Their subpoena requests all reports, photographs, videos and audio recordings related to the police investigation, which resulted in Herzberger being charged with battery for breaking an egg on her head as well as pouring condiments and putting croutons on her head.

Tomczak said it was his understanding she told Naperville police about the sexual abuse allegations in the lawsuit. Lee has declined to comment on whether the girl told the police about those allegations.

Naperville police told the girl’s attorneys that audio media they requested is no longer available because it was beyond the 90-day media retention period. They also said they consulted with the Will County State’s Attorney’s Office’s Criminal Investigation Division about the subpoena and received a “recommended directive” from the city’s legal team.

State’s attorney spokesman Charles B. Pelkie said their most recent guidance to Naperville police on the subpoena was to respond to it as they normally would. He said Herzberger’s criminal case is still under review for a potential upgrade of charges.

The criminal case is scheduled for a final pretrial date on Dec. 20.

Felix Sarver

Felix Sarver covers crime and courts for The Herald-News