DCFS worker convicted of mishandling AJ Freund case seeks new trial

Motion filed by Carlos Acosta’s attorneys say he did not get a fair trial

Carlos Acosta, defense attorney Rebecca Lee and defense attorney Jamie Wombacher listen as McHenry County State's Assistant Attorney Randi Freeze delivers the state’s closing argument the during the trial for the former Illinois Department of Children and Family Services employees Acosta and Andrew Polovin before Lake County Judge George Strickland on Friday, Oct. 13, 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.

The former Illinois Department of Children and Family Services worker convicted in October on charges he mishandled an investigation into abuse allegations months before the 2019 death of 5-year-old AJ Freund, of Crystal Lake, is seeking a new trial.

Carlos Acosta, 57, of Woodstock, was found guilty by Lake County Judge George Strickland following a bench trial, on two counts of endangering the life or health of a child, Class 3 felonies which carry a prison sentence of between five and 10 years. The conviction also is probational.

Acosta, a former IDCFS child protection specialist, was found not guilty of reckless conduct.

Acosta’s former supervisor Andrew Polovin, 51, of Island Lake was found not guilty of endangering the life or health of a child and reckless conduct.

Strickland outlined several ways Acosta did not ensure that AJ Freund - the subject of DCFS investigations since his birth, was protected from a dysfunctional, dangerous household.

AJ was allowed to remain with his family despite unexplained injuries found on the boy on Dec. 18, 2018, four months before his murder, as well as indications that his mother was continuing to inject heroin, a history of domestic violence and mental illness in the family, and a chaotic and filthy home, Strickland said in his ruling.

AJ died on April 15, 2019, after his mother beat and berated him and made him stand in a cold shower. He was put to bed cold, wet and naked, according to courtroom testimony.

An autopsy showed he died from blunt force trauma, according to Dr. Mark Witeck, a forensic pathologist.

The boy’s mother JoAnn Cunningham, 40, was convicted of murder and sentenced to 35 years in prison.

His father, Andrew Freund Sr., 64, was convicted of aggravated battery to a child, involuntary manslaughter and concealing a homicidal death and was sentenced to 30 years in prison.

In a motion for new trial filed in the McHenry County courthouse, Acosta claims he did not receive a fair trial.

Acosta “did not receive a fair and impartial trial due to the court’s admission of police reports and hearsay documents” DCFS procedures and investigation files, medical records, LEADS reports and court records, Acosta’s attorneys from The Law Offices of Lee & Wombacher in Woodstock wrote in the motion.

The motion asserts that testimony provided by state experts regarding DCFS procedures “exceeded” the scope of permissible expert testimony.

The state’s case included “demonstrative exhibits” being a large binder including numberous pages of DCFS procedures that were not in effect on Dec. 18, 2018, when Acosta was investigating a large bruise found on AJ’s hip and bruises on his face.

The procedures were rewritten after Jan. 4, 2019, when the case was closed.

“The State’s attempt to mislead the [judge] was improper,” the motion said.

The prosecutor “struck foul blows, asserting that procedures were applicable to this case when they were not,” the lawyers said adding “there were notable differences.”

“The State specifically addressed procedures that defined child abuse and neglect - that was not in existence during the relevant time frame,” the motion said.

Additionally, the motion said the state improperly presented videos to the judge found on Cunningham’s phone depicting Cunningham abusing AJ. The videos were created in January and March of 2019, after Dec. 18, 2018, from which the charges stem, therefore not available during Acosta’s investigation.

The attorneys said the videos were not relevant to the case and showing them to the judge was “so prejudicial that it should have been excluded.”

“The evidence was intended to inflame the [judge] regarding the horrendous acts taken against the child. ... The court in rendering its verdict, explicitly commented on the conduct in the videos and its egregiousness,” the motion said.

The motion also argued that “much of” the testimony provided by the state’s witnesses was based on speculation which “prejudiced [Acosta] and prohibited him from receiving a fair and impartial trial.”

The next court date is scheduled for Feb. 13.