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Judge in Jerry Sandusky trial tosses out 3 charges

Senior Judge John Cleland told jurors in the Jerry Sandusky trial that while some behavior — including oral sex between a man and a boy — is obviously a crime, other behavior is more ambiguous.

Showering with a boy, for example, is not necessarily a crime. That was part of Cleland’s message during instructions to the jury this morning.

“You may believe he exercised poor judgment. But poor judgment does not in and of itself amount to criminality,” Cleland told jurors this morning.

Jurors appeared to listen carefully as Cleland spoke for about 40 minutes, giving them instructions for how they should go about arriving at their decisions. Sandusky is facing 48 criminal counts for the alleged sexual abuse of boys.

That is three fewer than he had been facing as of Wednesday. Cleland dismissed two felony counts of involuntary deviate sexual intercourse and one count of aggravated indecent assault related to alleged victim No. 4 with prejudice, meaning prosecutors can’t refile the charges.

One of the involuntary deviate sexual intercourse counts was a duplicate, Cleland wrote in an order.

As for the other two charges, Cleland wrote that he dismissed them because no testimony was presented that showed evidence that Sandusky performed anal sex or digital penetration on alleged victim No. 4. Cleland said the man’s testimony was that Sandusky “attempted” that.

Cleland denied the prosecution’s request to file attempted involuntary deviate sexual intercourse charges.

Cleland also denied the defense’s request to dismiss counts related to alleged victim No. 8, an unidentified boy in a shower who a janitor testified Sandusky was performing oral sex on.

Cleland said jurors must decide whether Jerry Sandusky had criminal intent and sexual desire when he committed the alleged acts.

“The issue is not what the child felt. The issue is what the defendant intended,” Cleland said.

The defense will give its closing arguments after a short break. No one is allowed to enter or exit the courtroom while the closing arguments are under way.

After the prosecution gives its closing argument, the case will be handed to jurors. That is expected to happen at about noon to 1 p.m.

Cleland told jurors they can find Sandusky guilty on all counts, not guilty of the counts or guilty of some of them.

He gave them a broad overview of their duties, and reviewed what they need to consider when reaching their verdict on each of the charges.

The verdict, he said, must come from their own, conscientious decision.

“We all rely on your integrity and your good judgment,” he said.

Secondly, he said, the defendant is presumed innocent until proven guilty. The state does not have to eliminate all doubt, just reasonable doubt.

“We make few decisions in life that are free from all doubt,” Cleland said.

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