KENOSHA -- A Racine family is furious. They say a Kenosha County judge is preventing justice for their child.
"To have the judge not even listen and give Caleb a chance to have his story heard is like another slap in the face," said Cheryl Berry, Caleb's grandmother.
The Berry family cherishes whenever four-year-old Caleb smiles. Unlike when he was nine months old, the boy cannot use his hands. He cannot even hold his head up.
It all changed in May 2012. Caleb was with his babysitter, long-time family friend, Caroline Prieto.
Caleb's parents, Matthew and Rosa, say they got a phone call. Their son was in the hospital. The family says they were told the injuries were consistent with Shaken Baby Syndrome. Prieto was arrested and charged with child abuse.
Leading up to the trial, prosecutors failed to submit a witness list in time.
"That is absolutely the District Attorney's Office's fault," said Mike Graveley, Kenosha County deputy district attorney.
Graveley said the prosecutor working the case went on medical leave. Her witness list got lost in translation. The judge, Chad Kerkman, did not grant an extension nor did he grant an interview for this story.
"It is unacceptable what (prosecutors) did but I don’t understand how one piece of paper is what (Kerkman is) holding his hat on here," said Caleb's father, Matthew Berry.
"If you don't let a case actually be tried, if you don't let the truth come out, in my opinion -- just my own opinion - you haven't done any justice," Graveley said.
The District Attorney's Office asked to dismiss the case in order to refile charges. The judge denied that request. According to transcripts, he told prosecutors, "The statute says the witness list has to be filed within a reasonable amount of time. It wasn't done."
Kerkman also said during a February status conference that allowing the state to refile charges would be unfair to Prieto, who would have to endure a new trial. He also said it would set a bad example for prosecutors, who shouldn't think they can get a do-over when they fail to meet the court's deadlines.
“There really is no reason to grant that relief that you’re asking right now," Kerkman said, "It’s not fair.”
At trial last Monday, June 6th, the state could not call its full list of witnesses. Within a matter of minutes, the babysitter was acquitted.
"He was trying to make an example of the district attorney’s office," Matthew Berry said of Kerkman, "I can’t figure out why he would choose a victim for it but he was going to make an example of the district attorney’s office for their oversight."
"We'll never know what he could've done," said Cheryl Berry.
FOX6 News reached out to Prieto's attorney, Dr. William Hayes. He declined to comment on the case, saying only that he is praying for Caleb and his family.
The Court of Appeals upheld Judge Kerkman's ruling regarding the deadline.
Those with the District Attorney's Office said they're now working with the Attorney General's Office to see what options are now available.