mike mcqueary who has been witnessed and ajude kated in court as sexual abuse of a young boy in a showerreally characterize it the same. >> it all comes down to what they knew and when they knew it. was it something that was a casual horse play and fooling around or more sexual in nature. >> and did mcqueary describe it as horse play to them and then take that to the jury or did mcqueary say, guys, we have a big problem, and this is what i s saw. >> that is the point, because did they water it down or know exactly what happened or something of a sexual nature that occurred that they tried to cover up, right? or was it that they just believed that it was horse play and they rectified it and spoke to the parties and everything got resolved. that is what is at issue. but the problem in the hearing is that all of these are factual questions, and when you get factual questions, what you need is a jury. so ultimately a jury has to evaluate the evidence and a jury has to determine whether this is legit or illegit and why not a judge? >> and so it is difficult for a defense attorney or a juror f

but then there came a second incident, reported in 2001, when mike mcqueary witnessed what he would later testify was some sortle of intercourse between sandusky and a young boy in a locker room shower. that's now how spanier says it was described to him. >> it was described as horse play. and i said to them, are you sure that's how it was described, as horse play, or horsing around? and they said yes. >> reporter: when you hear horse play, what do you think? >> i guess i was thinking back to my own childhood, where horse play involved throwing water around, snatpping towels. i didn't ask about it. that's what i was conjuring up. >> reporter: shouldn't that have set off sirens, do you think? >> we all have the advantage now of hindsight, knowing about jerry sandusky. >> reporter: the attorney general believed it was much more than just horse play. based in part of mcqueary's testimony, curley and schultz were later indicted. meanwhile, spanier came under suspicion because of a single e-mail which seemed to indicate that he was part of an effort to keep from reporting the incident to autho

what spanier says is that as the story was reported to me, mike mcqueary's name was mentioned and itorseplay. that's all i heard about. you can ask the question and i certainly asked the question, what did you think horseplay was? he says i don't know. i just was told horseplay and that's all i knew. that did not trigger the kind of suspicion that the detailed horrible story that mcqueary told to the jury would have triggered. his story is all i knew was horseplay and so i did not treat it as if it were a sex abuse issue. >> so part of that is this e-mail. this is from 2001 in terms of how the university should handle this incident. he writes and he has been very much so criticized because of this, the approach is acceptable to me, the only downside for us is if the message isn't heard and acted upon. and we then becomeville initial for not having reported it. but then he goes on the approach you outline is humane and a reasonable way to proceed. i want to play what he told you about that e-mail specifically. let's roll that. >> i think what people want to read into it is it was huma

. >> he did not talk to joe paterno, as gerry sandusky, mike mcqueary, he did not talk to any of thei understand why he went to those conclusions, and obviously he did, but i believe the report is very incomplete. and i do believe that as things come out, it is going to be merged that some of the people who wrote some of the e-mails and so on are going to say that it has been misspoken. >> if you would like to hear the full interview, it airs wednesday at 9:00 p.m. on the nbc sports network. three months after the nation's biggest banks promised to cough up $3 billion for homeowners in maryland. >> coming up in tonight's consumer alert, we'll find out just how much money the state has received so far and how much work is up to be done. >> but first, hurricane isaac was not as powerful as katrina, but it is wreaking a lot of havoc as it is a slow-moving storm. >> and we will see how its remnants could impact our labor day weekend. but it'll become so much more. a new world-class resort casino in maryland. two thousand construction jobs to build it. four thousand permanent, good-paying

heard was that there was horseplay involved and there is corroborating evidence of that, that mike mcquearyhorrible apparent rape take place, that message did not get all of the way up the chain to spanier. so his point is, look, all i heard was horseplay. and horseplay is not illegal and we went to the second mile, and we said cut this out, and we don't want him in the showerers anymore and we don't want him in the facilities, and that was not something that we could go to child protective services about. believe it or not, that is his story. >> and sure, this is from a sociology professor before he was an administrative specializing in child abuse. >> and he, himself, an abuse victim, himself. >> and the downside he is going to assess down the road, and i don't have to time to go down this with you, but civil exposure, and enough said. >> enormous, enormous, and that has not started yet. >> heck, what a can of worms. jeffrey toobin and good stuff and great interview. >>> by the way, people, if you are keeping track, jerry sandusky is awaiting sentencing and the minimum exposure is a minim

they're also charged with failing to report to authorities what then grad student mike mcqueary told them about seeing sandusky in a shower with a boy. curley's attorney says it's a matter of interpretation. >> i think that it is clear from mr. curley's grand jury statement that he told the truth. >> reporter: the judge made no decision about dropping the charges and it's unclear if the case could get settled before it goes to a full trial. a penn state trustee was in court concerned about continued negative publicity for the school. >> if the judge rules that this is going to go to trial, then this is going to continue to stay in the news and that will impact the students at penn state. that will impact the alumni at penn state and that will impact penn state community. >> reporter: sandusky is in solitaire confinement not far from the campus and is said to be a model inmate. he'll be sentenced next month convicted of abusing 10 boys and he's reportedly writing another book with the help of his wife. penn state is still paying the legal bills of spanier, curley and schultz and the u

that's mike mcqueary, the famous redhead graduate assistant who saw something in the bathroom of theker room. >> the shower. >> shower, i'm sorry. and reported it to joe paterno. what he saw and what he testified at the trial is something very different, spanier says, from what he was told about what happened. he says he was only told there was horseplay, not a very sexual and rape-like encounter. >> i still remain someone who doesn't understand why anybody would think that a man engaging in horseplay with a teenager in a shower -- >> that's a big problem for his position. >> and you asked him about an e-mail in which they were talking about trying to be more humane with mr. sandusky. here's what he said. >> i think what many people wanted to read into it was that it was humane for us not to turn him in for being a known child predator. but i never, ever heard anything about child abuse or sexual abuse or my antennae raised up enough to even suspect that. >> this is, again, where i'm confused. horseplay between a naked man and naked teenager in a shower. >> so fascinating. graham spa

that was the incident where mike mcqueary, the former football assistant, saw sandusky and a young boy in a shower engaged in what seemed like sexual acts. what sandusky says is that he was never told that mcqueary or who the source was of the allegation, and most importantly he was told only that it was horse play, not that there was anything sexual going on. so because sandusky no longer worked at the university at that point, and because horse play is not a crime, that's why he didn't report it or order it reported to the authorities. >> interesting. jeffrey toobin, thanks so much. >> ok. >>> todd akin's comments about boergds and legitimate rape angered many fellow republicans. but some have a different opinion of the congressman. hear what they have to say, next. e. but we can't predict our shipping costs. dallas. detroit. different rates. well with us, it's the same flat rate. same flat rate. boston. boise? same flat rate. alabama. alaska? with priority mail flat rate boxes from the postal service. if it fits, it ships anywhere in the country for a low flat rate. dude's good. dud

problematic situation for spanier, because that is the time when many people will remember that mike mcquearythe red-haired graduate s a sassistant saw wha appeared to be a rape going on between sandusky and a young boy in the shou es at penn state. spanier's version of that is that by the time that the story reached him, all he heard was that sandusky was involved in horseplay. that is the word he heard and not any sexual assault and certainly not any rape. and he said given the fact that at this point that sandusky was not even an employee of penn state, and all he heard was that this is horseplay and how he handled it was telling second mile that sandusky couldn't do this kind of thing anymore was an appropriate reaction under the circumstances. >> jeff, the investigation aside here, does he have any personal feelings about what happened to the young boys? >> well, here's the tape. here's the excerpt from the tape of how he feels about that question. >> there are times when i am in a mode of substantial grief about what happened to those kids and then i switch into times of grieving for my

. >> mike mcqueary for one, the person who is really the key figure in all of this because there are two incidents that spanier is alleged to have known about, 1998 where he received some e-mails and that was the incident that was investigated by the police and they decided not to prosecute. 2001 was the mcqueary incident i think many people are familiar with, that's where mcqueary said he walked into the showers in the football offices and saw sandusky slapping, a clearly sexual situation with a young boy. what spanier said to me is he only knew, was told, this was something about horseplay. he was never told about sexual contact. >> horseplay in the shower. >> he didn't say in the shower. >> later in the interview he talks about -- >> the shower is 98. what he said, the shower, i knew there was some incident in the shower in '98. you may ask as i did why didn't you connect the dots? >> he said high school-age he thought maybe. horseplay he didn't pursue. >> he says he didn't pursue it and he pointed out that in 2001 sandusky no longer worked for penn state, so they didn't have the