McHenry County prosecutors want to admit medical and substance abuse histories of those close to AJ Freund – the 5-year-old Crystal Lake boy murdered in 2019 – during the trial of Carlos Acosta, one of two former Department of Children and Family Services employees charged following AJ’s death.
The motion is 18 pages, but the exhibits attached to it spread across hundreds of pages, which were shared in a thick binder by the McHenry County State’s Attorney’s Office with Acosta’s defense attorney Rebecca Lee in court on Wednesday.
However, the motion, and the evidence the prosecution wants to admit at trial, are not being made available to the public to view. A judge ordered they be impounded during Wednesday’s hearing.
McHenry County State’s Attorney Patrick Kenneally said the evidence could remain shielded from the public until trial because it details AJ’s medical records, as well as medical records and substance abuse histories of his parents, JoAnn Cunningham and Andrew T. Freund, as well as Cunningham’s former fiancé Daniel Nowicki.
It also includes records from the state’s child welfare agency, which formerly employed both Acosta and Andrew Polovin, a former DCFS supervisor.
Both men were charged with child endangerment and reckless conduct in connection with a December 2018 DCFS investigation involving a large bruise on AJ’s hip. Acosta and Polovin have each pleaded not guilty to the charges.
AJ was murdered a few months after the investigation on April 15, 2019, and his body was discovered wrapped in plastic buried in a shallow grave in a field in Woodstock. Cunningham was sentenced in July 2020 to 35 years in prison for first-degree murder, while the boy’s father is serving a 30-year sentence for aggravated battery of a child, involuntary manslaughter and concealment of a homicidal death.
Both Polovin and Acosta’s cases will be called Nov. 12, at which point a briefing schedule for Acosta’s case will likely be set, including a date at which the prosecution’s Wednesday motion could be argued, Kenneally and Lee said.
Kenneally said because of the DCFS and personal medical records being described by the motion and within the exhibits, the documents cannot legally be made public for now.
But he is arguing to introduce them at trial, and made the motion to inform Acosta’s defense, who he expects may object to the admissibility of some of the evidence.
“It’s a complicated evidentiary issue that we think for judicial economy purposes is best determined prior to trial,” Kenneally said.
He declined to describe what he and the other prosecutors on the case believe the records show or prove, saying doing so may reveal the state’s theory of its case against Acosta.
Lee did not comment further on the proceedings Wednesday other than to say she needed to review the motion and evidence.