updated 9/9/2008 2:31:09 PM ET 2008-09-09T18:31:09

A judge refused Tuesday to throw out a first-degree murder charge against a teacher’s husband, who is accused of killing his wife’s student lover.

Eric McLean, 33, is charged with the March, 10, 2007, shooting death of 18-year-old Sean Powell, though he claims his memory of the events is hazy.

“There is no evidence at all of premeditation,” defense attorney Bruce Poston argued.

But the judge said the jury will have to weigh the first-degree murder charge even though there was “no direct proof” that McLean had plotted to kill Powell.

Judge Mary Beth Leibowitz noted that Powell was unarmed, had exchanged words with the defendant minutes before the shooting and that McLean was aware of his wife’s affair for weeks — all matters for the six-man, six-woman jury to consider.

A first-degree murder conviction carries a minimum of 51 years in prison.

McLean has said he shot Powell, but claims it was an accident in the heat of the moment. Poston has pursued a conviction on a lesser charge, such as involuntary manslaughter.

The original grand jury returned a second-degree murder indictment against McLean. Then prosecutors went before a second grand jury in December and obtained a new indictment on the charge of first-degree murder.

The trial was briefly interrupted Tuesday by an unrelated bomb scare that cleared the courthouse.

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