Four months before 5-year-old Andrew "AJ" Freund was made to stand in a cold shower, was beaten by his mother and then put to bed cold, wet and naked, the Illinois Department of Children and Family Services opened and closed an investigation into the family.
Last week, two DCFS employees were charged criminally for alleged actions related to his death.
Criminal charges against social workers in cases like these are rare, but the question will be whether prosecutors will secure convictions and will the cases even make it to trial, according to prosecutors and criminal defense attorneys who spoke this week to the Northwest Herald.
Prosecutors will have to show former caseworker Carlos Acosta, 54, and his supervisor Andrew Polovin, 48, were not only neglectful and endangered Freund, but that it was their activity or lack of activity that caused the death of the child, one criminal defense attorney said.
AJ, of Crystal Lake, was killed April 15, 2019, authorities have said. His parents made a false 911 call three days later. After a community-wide search by agencies from across the state his body was discovered wrapped in plastic buried in a shallow grave in a field in Woodstock.
The indictments against Acosta and Polovin involve criminal charges stemming from Dec. 18, 2018, four months earlier, when authorities became aware of a large bruise on the child's hip.
According to a search warrant affidavit referencing Acosta and Polovin, the two are accused of allowing protective custody of AJ to lapse before conducting a proper investigation after a Crystal Lake police officer reported seeing the bruise.
Polovin also is accused of omitting a corresponding Crystal Lake police report, medical records and a home safety checklist from AJ's December 2018 file, according to the affidavit.
The child had been in foster care the first 18 months of his life after he was born to JoAnn Cunningham with heroin in his system. He continued to be the subject of many police and social worker visits to his home at 94 Dole Ave.
After AJ 's body was found and Cunningham, 37, and AJ's father, Andrew Freund, 61, were arrested and charged. Acosta and Polovin were placed on desk duty. They each have since been fired.
Attorneys questioned about the case and the likelihood of it getting to trial said both the defense and prosecutors face many hurdles.
Finding neglect on the part of Acosta and Polovin will be "somewhat easy," said Richard Kling, criminal defense attorney and law professor at Chicago-Kent College of Law.
"They didn' t follow up, they didn 't do what they were supposed to do ... and it endangered a child 's life," Kling said. "It 's not going to be too difficult to show they were aware of his injuries. They were aware of the prior abuse, and they didn't do what they were supposed to do."
Kling likened the scenario to the cartoon depiction of someone covering their eyes and putting their fingers in their ears and singing so as not to see or hear what they're being told.
The bigger issue, Kling said, would be in the sentencing phase should they be convicted.
If convicted of the felony child endangerment charges, Acosta and Polovin face two to five years in prison. The conviction also is punishable by probation.
"The hardest bridge to overcome is that you have to show the activity of the social workers warrant the more serious sentence," Kling said. "The prosecutors are going to have to show they were not only neglectful and endangered [AJ], but that it was their activity or lack of activity that caused the death of the child."
Prosecutors must show "proximate causation," he said adding it is like a game of dominoes.
Four months elapsed between the December charge and AJ's death, to which the mother has pleaded guilty. Prosecutors must show that the social workers actions or inaction led to AJ's death, although he died months later and his mother admitted to it, he said.
Defense attorneys could argue that maybe the social workers should have done more, but it was the mother who ultimately killed AJ and she pleaded guilty to the crime, Kling said.
Longtime private attorney Terry Sullivan, who has worked both sides of his share of cases as prosecutor and defense attorney, said this case would likely focus on whether or not what occurred in December led to AJ s death in April.
"The most important thing that jumped out at me in the indictment is the fact that the counts say 'while not acting in good faith,'" Sullivan said. "How is the prosecution going to show these two people did not act in good faith?"
Sullivan pointed to statements AJ made to authorities and a pediatrician in December when asked how he had gotten the bruise. AJ said maybe the family dog caused the bruise or "maybe mommy didn't mean to hurt me."
"[Prosecutors] have to prove what was in the minds of these two DCFS people," he said. "The second big point, is that it says that in all the counts that it was willful and wanton that they did this. They have to prove these people knew about the dangers to this kid and that they willfully let him go to his death."
Sullivan said while AJ may have had a bruise, he was not hospitalized for it. He questioned how often children get bruises. And, he added, where is the fault on the case workers' behalf? Is it that they did not make the report?
"Nonetheless, that bruise compared to bruises kids have all the time did not cause his death," he said.
Longtime criminal defense attorney Paul De Luca, who began his law career in 1979 as a prosecutor in Cook and Du Page counties, said while it sounds like Acosta and Polovin were negligent, it is a "jump" to say they are responsible for his death.
He also questioned how prosecutors would show proximate cause, especially because the mother already pled guilty to murdering the boy.
"How do they backtrack? That is a problem for the state," he said.
The challenge for the defense, De Luca said, will be overcoming the question of did Acosta and Polovin permit AJ to be in the home and continue to be abused. He said the prosecution has a decent argument in that Acosta and Polovin had a duty and if they had removed the child, they could have prevented the death.
The defense could lose on the child endangerment charge by a lack of what they did after seeing the bruise, but it still is tricky to prove they are responsible for AJ s death, De Luca said.
Kling said the defense is also likely to file to dismiss the charges claiming the social workers have immunity from prosecution, but the judge would probably deny this and opt to have a jury decide.
Kling also spoke to a similar case in Los Angeles County where four county social workers were charged with child abuse and falsifying public records in the death of 8-year-old Angel Fernandez. The child had long been in the eye of childcare workers, and he was killed by his parents in 2013, weeks after his child welfare case was closed.
The trial judge dismissed this case, a decision that was upheld on appeal. The case was formerly dismissed in July.
In that case, the court found that under California law the social workers had no "duty to control" the abusive parents, thus they did not violate a duty they didn' t have, Kling said.
Illinois courts might agree and adopt the California reasoning, although Illinois does not have to adopt California law, Kling said. If the judge here adopts the theory used in the California case, then the result would be the same.
But if the Illinois judge goes a different route and finds that by allowing the child to remain in the abusive parents' custody when the DCFS workers could have removed the boy from the home, the workers relinquished control they did have. Then the case goes to trial.
If the case doesn't get dismissed, Kling said he would expect the defense to file motion for change of venue because of the high media exposure.
“Realistically, there are a bunch of issues for both sides,” Kling said. “It is not the easiest case because of publicity, but it is not impossible.”
De Luca said if the case goes before a jury, it surely will run high on emotion and jurors will hear all the details of AJ s death.
Sullivan said he feels Acosta and Polovin will likely become scapegoats for a system wide failure within DCFS. In this case he would opt to have the case heard before a judge in a bench trial rather than a jury.
"The whole thing is sad and that is what goes against the defendants," Sullivan said.
Polovin is due in court Thursday, and Acosta is up Sept. 24. As of Sunday, no defense lawyers were assigned to their cases, according to the McHenry County court website.
McHenry County State s Attorney Patrick Kenneally and Illinois DCFS spokesman William McCaffery both declined to comment.
Freund is set for a status hearing Wednesday. Cunningham was sentenced to 35 years in prison. She currently is housed at Logan Correctional Center in Lincoln.