DCFS workers on trial over AJ Freund’s death won’t testify; defense rests without calling witnesses

Two DCFS workers are accused of failing to intervene to prevent boy’s murder

Defendant Carlos Acosta, defense attorney Rebecca Lee, defense attorney Jamie Wombacher, defense attorney Matthew McQuaid, and defendant Andrew Polovin listen to testimony during the fourth day of the trial for the former Illinois Department of Children and Family Services employees Acosta and Polovin before Lake County Judge George Strickland on Thursday, Sept. 14, 2023, at the McHenry County Courthouse. Acosta, 57, of Woodstock, and Polovin, 51, of Island Lake, each are charged with two counts of endangering the life of a child and health of a minor, Class 3 felonies, and one count of reckless conduct, a Class 4 felony, related to their handling of the AJ Freund case.

Attorneys for two former DCFS workers charged in connection with the death of a 5-year-old Crystal Lake boy rested their case Friday without calling their clients, or anyone else, to testify.

With no defense given, the case against the two former child welfare agency employees was recessed until next month, when closing arguments are expected.

The surprisingly quick wrap-up of this phase of the trial happened after four days of testimony from prosecution witnesses that the Illinois Department of Children and Family Services failed to intervene despite evidence that AJ was being abused.

On Thursday, those present in the McHenry County courtroom had heard disturbing recordings of AJ Freund’s mother made on her cell phone berating the boy in the months before she killed him.

The audio of JoAnn Cunningham abusing AJ – who died on April 15, 2019, after she beat him and made him stand in a cold shower – was heard during the trial of two former Department of Children and Family Services employees.

In a rare move, prosecutors criminally charged former child protection specialist Carlos Acosta, 57, of Woodstock, and his former supervisor Andrew Polovin, 51, of Island Lake.

Prosecutors and state witnesses say they failed to follow required guidelines following an incident on Dec. 18, 2018.

Acosta and Polovin each are charged with endangering the life of a child and health of a minor, Class 3 felonies, and reckless conduct, a Class 4 felony.

However, defense attorneys have argued that the Woodstock office the two worked out of at the time was overworked, understaffed and under pressure to close out cases within 60 days.

In one video taken in January 2019, the courtroom heard Cunningham’s voice become louder and shrill:

“You walked in the snow to make me mad? Why do you have to make me mad?” she said.

The only sounds from AJ were a timid voice saying “umm” or “I don’t know.”

Cunningham was then heard saying her son had better tell her the truth and that “it can’t get any worse, buddy. It’s not gonna get any worse for you. This is about as bad as it gets.”

Audio from three more videos with similar content were played in which she is heard berating him for wetting himself and accusing him of being a manipulator. In one video, AJ told her he wanted to live alone, without his family, and that he was going to get her in trouble, only angering her more.

Those in the courtroom did not see the video portion at the direction of the Lake County Judge George Strickland, who is hearing the case.

The state’s final witness was a family member who had cared for AJ when he was born addicted to heroin and taken from Cunningham and his father Andrew Freund Sr. AJ was returned to their custody after about 18 months.

The relative, who asked not to be identified to protect AJ’s sibling, said about two years after AJ returned to the custody of his parents, Cunningham sent the relative an email stating she was a bad influence on AJ and that she was no longer allowed to see him.

The relative testified Thursday that she never was contacted by DCFS following an incident on Dec. 18, 2018, when a Crystal Lake Police officer took AJ into protective custody and bruising and abrasions were seen on his hip and face.

Prosecutors and expert witnesses have said during the trial, which began Monday, that had DCFS not allowed the protective order to lapse and had followed child welfare agency guidelines, AJ would not have been killed by his mother just four months later.

Pamela Wells, an assistant state’s attorney from Winnebago County who works in the juvenile division, detailed the steps that should have been pursued when AJ was taken into protective custody that day.

Wells said anyone could have called the McHenry County State’s Attorney’s Office on Dec. 18, 2018, and reported AJ’s bruises and the condition of his “filthy” home at 94 Dole Avenue, and an investigation would have begun immediately.

Based on the photographs of AJ taken by the police officer that day, and on police, medical and DCFS documents related to AJ over the years, she said that, had the situation been reported to the state’s attorney, an emergency hearing would have been held within 48 hours and AJ could have been removed from the home.

“The court involvement and the people involved with providing services would have been a disruption into their privacy and into what was going on behind closed doors.”

—  Pamela Wells, an assistant states attorney from Winnebago County who works in the juvenile division called as state's expert witness.

Or, if he had been allowed to stay in the home while an investigation was underway, a number of conditions would have been put into place, including substance abuse and parenting support, and an investigator, a court-appointed advocate a public guardian would have been assigned to check on him regularly, Wells said.

Such conditions would have put “more eyes and ears” on AJ, and his family would not have been able to abuse him any further, she said.

“In your opinion had protective custody not lapsed on Dec. 18. 2018, would it have been possible (for) AJ to be murdered by his mother ...?” prosecutor Randi Freese asked Wells.

“No,” Wells answered. “The court involvement and the people involved with providing services would have been a disruption into their privacy and into what was going on behind closed doors.”

Julia Almeda, a former McHenry County assistant state’s attorney who worked in the juvenile courts and on AJ’s case in 2013, testified that she too never got a call about the December 2018 incident.

Had she, Almeda said, she “absolutely” would have immediately assigned an investigator, filed a petition to take AJ into protective custody, searched court systems, obtained police reports, cross referenced civil and criminal cases, assigned a forensic interviewer “and anything else that helps fill in that picture.”

Cunningham, 40, entered a plea of guilty to first degree murder and Freund Sr., 64, entered a guilty plea to aggravated battery of a child, involuntary manslaughter and concealment of a homicidal death. Each are serving 35 and 30 years in prison, respectively.

The trial is expected to resume in the first two weeks of October.

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