The child’s death remains charged with murder News, Sports, Work

OBSERVER. Photo: Gregory Bacon. Ashley Bertino is being returned to the county jail by sheriff’s deputies after a preliminary hearing in Silver Creek allowed her murder charges to be dismissed.

SILVER CREEK – Ashley Bertino will remain behind bars following the death of her 12-year-old daughter last spring.

Acting Hanover Township Judge Christopher Penfold ruled Friday that prosecutors had gathered enough evidence to uphold the second-degree murder charge against a 36-year-old Silver Creek mother.

His decision came after a two-day preliminary hearing in Hanover Town Court, where the district attorney’s office had a total of eight people testify.

THEY GIVE WITNESSES IN COURT

Mia’s school bus driver, Silver Creek Central’s former dean of students, the county’s chief medical examiner, the county coroner who attended the scene and a Silver Creek pediatric nurse all testified on behalf of the prosecution.

Two more people testified on Friday.

The first was Jennifer Johnson. She is a registered nurse at Silver Creek Central School.

Johnson said she had known Maya and her twin sister since kindergarten. Later, she also met their younger brother when he went to school.

Johnson noted that Mia frequently visited the nurse’s office because her clothes did not fit, soiled her underwear, and sometimes did not wear it.

Johnson said Mia’s mother, Ashley Bertino, did not want her to visit the nurse’s office. “She didn’t like us” Johnson said.

When asked to describe Mia’s appearance in the last year of her life, Johnson said that Moia’s hair appeared to have never been brushed and she had bad body odor. “She looked unwell.” Johnson said.

On the last day Mia was at school, she complained that her stomach hurt and she was vomiting.

Johnson’s husband works as a school resource officer at Silver Creek. When they heard the 911 call to Mia’s residence at 23 Oak St. around 6:45 p.m., she and her husband drove to the scene, she said.

Johnson said Mia’s younger brother was in tears, saying he thought Mia was dead as he hugged her husband.

Moi’s sister showed no emotion, but Johnson said she did “may be in shock.”

As Mia was placed in the ambulance, Johnson said she did not see Bertino.

After Johnson spoke, Sheriff’s Office Investigator Eric Vara was led to the witness stand.

He was called to Brooks Hospital after Mew was taken there the night she died.

Vara said he and his partner had a 30-minute conversation with Bertino to get her perspective on what happened. Miranda Bertino was not read her rights. “It was just establishing the facts” he said.

After two witnesses on Friday, both the prosecution and the defense made their closing arguments.

First Assistant District Attorney Jeffrey Di Palma noted that this is not a trial; this is a preliminary hearing where the prosecution must testify “reasonable reason” for a fee

DiPalma said he believes prosecutors have established what Bertino testified “lewd indifference” in the death of his daughter. “This is not ordinary indifference. It shocks the conscience of a normal person.” he said.

DiPalma claimed that Bertino “didn’t get medical help until it was too late.” Maya died of diabetic ketoacidosis, a complication of untreated diabetes.

Assistant Public Defender Andrew Brautigam noted that Maya’s death “there was a tragedy” but argued that the prosecution failed to prove that his client had committed anything criminal.

After closing arguments, Penfold went through the testimony of all eight people who took the stand and noted that the defense had declined to call any witnesses.

After issuing his ruling that the second-degree murder charge could stand, Penfold said the case would go to a grand jury and Bertino would be sent back to the county jail without bail.

Penfold added that it was a very emotional preliminary hearing. “In my 24 years on the bench, this is by far the most serious case I’ve ever heard.” he said.

FURTHER STEPS

After the hearing, District Attorney Jason Schmidt discussed the next steps in the case. He said they will still refer the case to a Grand Jury, where additional charges are possible. This is expected in December.

Once the Grand Jury process is complete, if the District Attorney’s Office receives an indictment, Bertino will be arraigned and her bail status will then be reviewed by a district judge.

After that, Schmidt said that the case will be transferred to “discovery” the phase in which evidence is gathered and handed over to the defense. Once the legal issues regarding the evidence are resolved, the case can be brought to trial.

But Schmidt doesn’t expect a trial anytime soon. “Given the seriousness of the situation, looking at the schedule, I don’t expect to see it on our testing calendar until sometime in August next year, and that might even be ambitious.” he said.

While Penfold remanded Bertino to the county jail without bail, Schmidt said a district court judge could review her status at any time at the request of the defense.

Schmidt thanked everyone who testified at the preliminary hearing and said it was clear the community did everything they could to help Mia. “What’s shocking to me is that here we are in 2024 and you have a whole community … trying to provide resources to this mother to help care for her own children. And this mother decided to refuse the offered help.” he said.

Schmidt said Bertino should be held accountable for his actions. “It’s just a shock for me. This is a preventable death. … The entire school district fulfilled its responsibility. The only person who should have a legal obligation, a moral responsibility to do something about it, did nothing until it was too late. This cannot go unanswered. Such actions will not stand.” he said.