Carlos J. Acosta, 57, of Woodstock, (left) went on trial in September and a judge found the former DCFS worker guilty of failing to do his job, leading up to the death of AJ Freund (right) in Crystal Lake in 2019. | Photo – Left: Gregory Shaver/Shaw Media (Pool); Photo – Right: Provided

A former DCFS worker has requested a new trial, arguing he did not receive a fair trial, after he was found guilty of mishandling abuse investigations of AJ Freund before the Crystal Lake boy’s murder.

Carlos J. Acosta, 57, of Woodstock, and Andrew R. Polovin, 51, of Island Lake, were both charged in September 2020 with two counts of endangering the life of a child causing death, a Class 3 felony, and one count of reckless conduct causing great bodily harm, a Class 4 felony.

Lake County Judge George Strickland found Acosta guilty of two counts of child endangerment and not guilty of his third charge of reckless conduct on October 13 following a trial that began in September.

The judge found Polovin not guilty of all three of his charges.

Strickland said he found Acosta was not a reliable reporter of what he was doing. “He makes material omissions and I believe he did so on purpose where he would put an innocuous or benign reason for something happening he did and omitted what I concern the very obvious facts of this case.”

Strickland outlined numerous steps that the DCFS workers failed to take in their investigation and several parts that they ignored or failed to further investigate.

A grand jury indictment in 2020 charged Acosta, a DCFS child protection specialist, and Polovin, a DCFS child protection supervisor, with “not acting in good faith” within their official capacities.

Carlos Acosta listens as his defense attorney Rebecca Lee before Lake County Judge George Strickland on September 13, 2023, in the McHenry County Courthouse after Acosta was charged with endangering the life of a child and reckless conduct related to his handling of the AJ Freund case. | Photo: Gregory Shaver/Shaw Media (Pool)

The indictment said the two, in a “willful or wanton manner,” knowingly caused or permitted the life or health of Andrew Freund Jr. to be endangered and that was the proximate cause of the boy’s death.

Freund Jr., who was five years old and resided in Crystal Lake, was murdered in 2019 by his mother, JoAnn Cunningham.

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Court records show Acosta last month filed a motion for a new trial.

The motion said Acosta did not receive a fair and impartial trial due to the court’s admission of police reports and “hearsay documents.”

Acosta’s attorney said that prosecutors used a DCFS procedures binder during the trial consisting of procedures not in effect in parts of December 2018 and January 2019.

The motion also said prosecutors’ experts regarding DCFS procedures and juvenile court procedures “exceeded the scope of permissible expert testimony.”

The motion argued that other experts called by prosecutors provided testimony based on speculation of what might have happened to AJ if Acosta had taken different actions.

“The cumulative effect of the rulings in this case prevented the Defendant from receiving a fair trial as guaranteed by the United States Constitution, and this Court must grant the Defendant a new trial,” Acosta’s attorney said in the motion.

Before giving his trial verdict, Strickland said DCFS workers have a hard job because their job “is not math” and there is not always a clear right or wrong decision. However, the judge said DCFS employees do not have immunity.

Andrew Polovin (right) talks with his defense attorney Matthew McQuaid (left) during the fourth day of the trial for the former Illinois Department of Children and Family Services employees Carlos Acosta and Andrew Polovin on September 14, 2023, at the McHenry County Courthouse. | Photo: Gregory Shaver/Shaw Media (Pool)

Strickland told Polovin that he could not find him guilty beyond a reasonable doubt because he did not know what exactly Polovin knew in the AJ Freund investigation and when he knew it.

Despite the not-guilty verdict, the judge told Polovin that he “completely abdicated” his responsibility in the case.

“He was failed by the adults in his life. He was tortured to death. He deserved due process. AJ never got due process from DCFS. He died suffering and I hold the two of you and DCFS responsible for it,” Strickland said at the end of the trial.

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Pamela Wells, a staff attorney for the Illinois Office of the State’s Attorney Appellate Prosecutor, testified that she believed AJ would not have been returned to his parents by April 15, 2019, when he was killed, if DCFS had taken protective custody of AJ when they responded in December 2018 to investigate a large bruise found on the boy.

AJ told an emergency room doctor, who was examining the bruise, that he had been hit or spanked before.

“I had asked with what, and he said a belt, I asked him if that is what made the mark, and he said yes,” Dr. JoEllen Channon, who works at Northwestern Medicine Hospital Woodstock, testified.

AJ then told the doctor, “Maybe mommy didn’t mean to hurt me,” Channon said.

The doctor said she was 100% certain that protective custody could be maintained over AJ because of the evidence indicating his mother, JoAnn Cunningham, was the abuser.

McHenry County State’s Attorney Patrick Kenneally delivers his opening statement during the trial for the former Illinois Department of Children and Family Services employees Carlos Acosta and Andrew Polovin before Lake County Judge George Strickland on September 11, 2023, at the McHenry County Courthouse. | Photo: Gregory Shaver/Shaw Media (Pool)

DCFS closed the case after attributing the bruising to the family dog, despite AJ’s statement to the doctor.

“You don’t leave the child in the situation to be injured again while you figure it out,” Wells said.

Wells explained that the court would very likely have granted protective custody of AJ after the bruising incident.

The attorney said that even if AJ had eventually been returned home after the incident, there would have been several conditions in place ordered by the court.

Those conditions, such as random drug tests for the parents and random check-ins at the Freund home, would have disrupted the possibility that further abuse would have occurred, Wells said.

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“The parents would have been less likely to abuse him — number one. And number two, if that abuse had been ongoing they would have been able to see it and there would have been later hearings to remove him from the home,” Wells said.

JoAnn Cunningham, 37, of Crystal Lake, (left) and her 5-year-old son AJ Freund, who she was convicted of killing. | Provided Photos

Misty Marinier, the executive director at the McHenry County Child Advocacy Center and a former Algonquin police officer, testified that AJ’s injury would have qualified for an interview at the child advocacy center but DCFS never contacted the center.

“I believe that had any of those been done, AJ would not have been tortured to death,” Dr. Demetra Soter, who is a pediatrician with a specialty in child abuse, testified, referring to DCFS taking intervention months before AJ’s death.

Attorneys for Polovin and Acosta argued they were overworked with cases and needed more staff.

“When your job is to protect children and you don’t do that job because you are lazy and you are heartless, you are necessarily and by definition endangering children,” Kenneally said during opening statements.

A federal lawsuit said Acosta and Polovin conducted “sham investigations.”

Acosta faces two to 10 years in the Illinois Department of Corrections but could also be sentenced to probation, Kenneally previously told Lake and McHenry County Scanner.

A sentencing hearing has not been scheduled yet but a status of sentencing hearing was held earlier this month.

Another status of sentencing hearing is scheduled for February 13.