Judge tosses out 3 more counts against Sandusky

Mark Wilson / Getty Images

Jerry Sandusky made no comments as he arrived for court Thursday in Bellefonte, Pa.

By Kimberly Kaplan, NBC News, and M. Alex Johnson, msnbc.com

The judge in the trial of? Jerry Sandusky threw out three more of the child sexual abuse charges Thursday against the former Penn State University assistant football coach?as jurors prepared to begin their deliberations.

Defense attorneys were delivering their closing argument after Judge John Cleland gave the jurors their final instructions in Centre County court in Bellefonte, Pa. After closing arguments from the prosecution, deliberations could begin as early as Thursday afternoon.

Kimberly Kaplan of NBC News reported from Bellefonte, Pa. M. Alex Johnson is a reporter for msnbc.com. Follow M. Alex Johnson on Twitter and Facebook.

Two grand jury reports originally returned 52 counts accusing Sandusky, 68, the former longtime defensive coordinator for the Penn State University football team, of having used his connection to one of the nation's premier college football programs to "groom" 10 boys, whom he met through his Second Mile charity for troubled children, for sexual relationships.

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Cleland had already thrown out one of the counts, and Thursday, he dismissed three more.

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Two were charges alleging involuntary deviate sexual intercourse with one of the 10 alleged victims, which Cleland said the evidence didn't support. Had the jury convicted Sandusky on those two counts, Cleland said, he would have been required to set the convictions aside.

The third count was a duplicate of another count, he ruled.

Sandusky made no comment as he arrived at court Thursday morning with his wife, Dottie, who testified Tuesday?that she never heard or saw her husband engage in any inappropriate behavior with children during their 45 years of marriage.

Sandusky had been widely expected to?testify?Wednesday before his lawyers abruptly rested their case after a lengthy conference in the judge's chambers.

A source close to Sandusky said "there was no one factor that led to the decision," but?NBC News reported Thursday?that?Sandusky decided not to testify after his lawyers were warned that prosecutors would call his adopted son, Matt, as a rebuttal witness if he did so. The sources, speaking on condition of anonymity, told NBC News that Matt Sandusky was prepared to deliver damaging testimony about his father.

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In his final instructions, Cleland told jurors that they had great leeway in determining whether Sandusky's alleged behavior, while possibly troubling, may not have been criminal. ?

"It is certainly a crime for a man to have oral sex with a boy," he said, but "... other forms of physical contact are more problematic."

For example, he said, "It's not necessarily a crime for a man to take a shower with a boy. It's not necessarily a crime for a man to wash a boy's hair or lather his back or shoulders or to engage in back rubbing."

The bottom line was Sandusky's intent, "not the child's reaction," he told the jurors, who heard eight of the 10 alleged victims testify that they were traumatized by Sandusky's alleged advances.

"Any behavior motivated by sexual behavior was a crime," but if Sandusky "did not act out of sexual desire, then he did not commit a crime, even if he did exercise bad judgment."

In other words, "You must distinguish a display of innocent affection from lust," Cleland instructed.

The trial, which opened two weeks ago, is the culmination of an investigation of Sandusky?that led to the firing of head coach Joe Paterno, a college football legend who won more games than any other major college coach in history. Sandusky, who was at his side for many of those victories, was for many years presumed to be Paterno's heir-apparent.

Paterno died in January, a few weeks after the Penn State Board of Trustees dismissed him for not having done enough to stop Sandusky's alleged abuse.

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