BELLEFONTE - Senior Judge John Cleland rejected motions Monday by Jerry Sandusky's defense attorneys to dismiss any counts against their client.
The jury could weigh whether testimony and evidence presented supported the child sexual abuse charges against the former Penn State assistant football coach, Cleland said.
Sandusky was facing 52 sexual assault counts but prosecutors withdrew one count Monday, stating the statute of limitations had expired. Cleland denied motions by the defense that the commonwealth's case failed to show enough evidence for the jury to consider the other counts.
Former Penn State football assistant coaches Booker Brooks, left, and Dick Anderson, right, leave the Centre County Courthouse Monday in Bellefonte.
Defense attorney Karl Rominger argued prosecutors' long time frames for the alleged abuse weren't specific enough to allow rebuttal by witnesses who might otherwise provide an alibi for Sandusky. Rominger asked that 38 counts stemming from alleged Victims 1, 3, 4, 5, 7, 9 and 10 be dismissed because the time frames were too broad to put up a fair defense.
"It's no secret I've been concerned about this since the beginning," Cleland said as Rominger and Chief Deputy Attorney General Frank Fina argued the issue.
Pennsylvania courts have allowed prosecutors "broad latitude when attempting to fix dates of a continuous course of conduct in child abuse cases," and a child's lack of, in effect, good record-keeping shouldn't prevent a jury from deciding whether evidence supports the charges despite not having the specific dates, Fina said.
Fina did say prosecutors were withdrawing one count related to Victim 7 from an alleged conduct in 1995 and 1996 but defended the state's evidence as more than what was portrayed by Rominger.
The evidence in Sandusky's case, Fina added, "clearly paints a picture of a serial abuser" and it should ultimately be up to the jury to decide whether prosecutors showed enough evidence to support the charges.
While he wasn't certain early in the case, Cleland said prosecutors have supplied enough information for the jury to consider the counts related to the broad timeline.
He pointed out that in the case of Victim 9, the alleged victim testified he was with Sandusky nearly every weekend for about four years. That, the judge said, was enough information for the defense to find alibis for Sandusky.
Cleland also denied dismissing charges related to charges stemming from alleged incidents involving Victim 2 and Victim 6 as well as the unidentified Victim 8, allegedly witnessed by a Penn State janitor in 2001.
Rominger also argued counts tied to alleged Victim 2, who has not been located, must go because former assistant coach Mike McQueary testified he didn't actually see Sandusky having sex with the boy.
Fina pointed out that McQueary testified that circumstantial evidence - particularly skin-slapping sounds and Sandusky's alleged positioning behind the boy - was evidence of sex even if McQueary said he didn't actually see the alleged sodomy.
"There's ample evidence to what was going on," Fina said, adding that based on case law it was enough to allow the jury to consider the count.
Whether Victim 6 suffered any abuse in 1998 was also among Rominger's arguments. The defense attorney noted the alleged victim said he blacked out after Sandusky picked him up during an alleged shower incident but testified he didn't think anything inappropriate occurred.
Whether a child perceives something as a crime isn't the only thing to consider, Fina said.
Fina again pointed to state case law and said indecent assault has been found in incidents involving people touching children through clothes in areas such as the back, stomach or neck - even when the only allegation is an adult giving a foot rub to a child.
Ultimately, it's a matter of whether the defendant received sexual gratification from an alleged incident and the jury should make that call, Fina said.
There was other evidence, such as testimony from retired Penn State police investigator Ronald Scheffler that "there was something more here than a shower" with Victim 6, that the jury can consider, Fina said.
Rominger also fell short in arguing the jury couldn't be put in a position where it was guessing the age of the boys called Victims 2 and 8 based on the eyewitnesses' testimony. Fina countered that any adult can likely discern a prepubescent boy from that of someone older than 16 years old.