Former DCFS case worker in AJ Freund case seeks to be tried separately from his supervisor

Former DCFS case worker and current McHenry County Board member Carlos Acosta appears in court with Judge Robert Wilbrandt at the Michael J. Sullivan Judicial Center on Friday, March 26, 2021 in Woodstock.  Acosta was the DCFS case worker overseeing 5 year old AJ Freund prior to his murder by parents Andrew Freund and JoAnn Cunningham.

The former Department of Child and Family Services case investigator charged in connection with the death of Crystal Lake’s 5-year-old AJ Freund is asking to have his case separated from his old supervisor’s.

McHenry County Board member Carlos Acosta, 55, of Woodstock, and his former DCFS supervisor, Andrew Polovin, 49, of Island Lake, each are charged with child endangerment and reckless conduct related to their handling of Freund’s case. The child was abused for most of his young life before he was murdered in 2019 by his mother, JoAnn Cunningham.

Cunningham, 38, pleaded guilty to first-degree murder and is serving 35 years in prison.

AJ’s father, Andrew T. Freund, 63, formerly a local attorney, pleaded guilty to aggravated battery of a child, involuntary manslaughter and concealment of a homicidal death. He is serving a 30-year prison sentence.

On Sept. 10, 2020, Acosta and Polovin were “jointly indicted,” which requires they be tried together.

In the motion filed in McHenry County courthouse, Acosta is asking that his case be severed from Polovin’s to ensure he receives a fair trial. He contends that if the two cases are tried together neither of them would receive a fair trial and each could be prejudiced against.

“If one of the co-defendants testifies on his own behalf, and the other chooses not to testify, the jury will likely draw negative inferences from one defendant’s exercise of his privilege against self-incrimination because his codefendant testified,” Acosta’s attorney Rebecca Lee, of Lee & Wombacher, LLC in Woodstock, wrote in a motion. “Such an inference renders the privilege meaningless and creates prejudice that the non-testifying defendant will be unable to have a fair trial.”

The motion also notes that each defendant are witnesses in each other’s case and each are calling in expert witnesses to testify about each other’s positions with DCFS, which could be confusing to the jury.

Prosecutors are supposed to file their response to the motion this week and the matter is set to be argued Jan. 25, according to court documents.