Chautauqua County Judge David Foley is contemplating whether or not a second-degree murder charge should remain against a woman whose 12-year-old daughter died from untreated diabetes.

On Monday, arguments were heard in the case involving Ashley Bertino. 36, of Silver Creek. Her daughter Mya Smith died April 29, 2024.

Prosecutors believe Mya’s life could have been spared if she was given basic medical care. They accuse Bertino of having a “depraved indifference to human life.” Along with second-degree murder, Bertino was also charged with second-degree manslaughter and three counts of endangering the welfare of a child.

“The legal argument that was raised … is that this isn’t depraved indifference. Essentially their (defense) argument is that this child died of diabetic ketoacidosis. The symptoms that the child was exhibiting are symptoms only a medical professional would understand,” District Attorney Jason Schmidt explained in an interview following the court appearance.

Schmidt and Assistant District Attorney Jeffrey DiPalma are prosecuting the case.

Schmidt said they stand by their decision to charge Bertino with second-degree murder.

“We’ve always recognized that the facts in any depraved indifference case, they’re very fact-driven cases and there’s not a ton of them. It’s a very unique statute,” he said.

DiPalma agreed.

“The court is doing what it’s supposed to do, and that is to take a long and hard look at the law, cases, and craft a decision. We’re confident that the judge is going to do just that,” he said.

DiPalma said the court is also deciding if all the charges should be presented at the same time, since two of the three charges of endangering the welfare of a child had to do with her other two children.

If Foley rules that the charges should be separated, then there would need to be a separate trial for those abuse allegations.

“That’s not a question if the evidence is sufficient, he is concerned about the prejudicial effect,” DiPalma said.

Foley gave the defense two weeks to file supplemental arguments.

A ruling could come in 30-60 days.

Bertino is currently housed at the Chautauqua County Jail. Bail has been set at $250,000.

A trial is not expected before the end of 2025 or early 2026.