setback in his attempt to delay his upcoming hearing in the january 6th case. the judge rejecting his legal team's request to push the hearing unless next week. tonight, a defiant trump sounding off. plus, trench warfare. we're going to take you to the front lines to see how one ukrainian soldier is risking his own life in order to bring comfort to the families of the fallen. it is a special report that you will see first here "outfront." and the suspected gilgo beach serial killer is now refusing to provide his dna to investigators. why? the sheriff in the case will be "outfront." let's go "outfront." good evening, i'm erin burnett. "outfront" tonight, rejection. trump losing his effort to delay a court hearing in the january 6th case. the judge shutting down trump's efforts to move the hearing to next week, saying that it will happen this friday at 10:00 a.m. eastern. now, this puts trump's team in a florida court for a hearing in the mar-a-lago case thursday, and then friday in washington for a january 6th hearing. and even though trump himself doesn't have to be at these hearings, he is saying that his court calendar is blocking him from running his campaign for the white house. >> i'm sorry, i won't be able to go to iowa today, i won't be able to go to new hampshire today because i'm sitting in a courtroom on [ bleep ] because -- [ cheers and applause ] his attorney general charged me with something. >> now, again, he's not going to be sitting in a courtroom in these hearings so that's not true. but you heard him use the expletive. the crowd went on to chant it after trump said that. and of course even as trump is using these indictments to rile up these crowds, he's pumping his poll numbers. legally the reality is that winning the 2024 election could be his best bet to avoid prison time. the frontrunner in the republican presidential field is currently facing 78 criminal charges in three separate criminal cases. and by the way, that's just those three, the possibility of a fourth indictment in georgia is looming any day. and as trump's indictments step by step move towards actual trials, the special counsel is not slowing down on more investigations, which involve trump. today we know that the grand jury met for the first time since handing up that election indictment against trump in the january 6th case. the ct that they're meeting, investigating raises questions about what they're looking at, in part, about the six alleged co-conspirators listed in that indictment that it don't appear to have been charged at this time. perhaps they too could face federal charges. but it all comes as a defiant trump lashed out at the special counsel for trying to limit what trump can say about the 2020 january 6th case. >> this is all about election interference. but that isn't quite good enough. crooked joe now wants the thug prosecutor, this deranged guy to file a court order, taking away my first amendment right so that i can't speak. so listen to this. [ crowd reacts] >> we don't want you to speak about the case, the case is a ridiculous case, it's a first amendment case. but we don't want trump to speak. so, they want me -- they take away your rights on first amendment. >> now, the special counsel says the request to limit what trump can say is to, quote, safeguard witness privacy and the integrity of those proceedings. well, in english, what that means is to prevent trump when he gets the information in the aims of the people who spoke out against him from intimidating them from maybe naming them in those rallies where people are yelling bull, you know, and exposing them to the risk of violence. jessica schneider is "outfront" live in washington to begin our coverage tonight. jessica, what more are you learning about the judge's response to trump tonight? >> reporter: yeah, tonight, erin, it really shows this judge is serious about moving this case along. despite all those criticisms and even the calls for recusal that have come from trump and his legal team. judge tanya chutkan has scheduled the first hearing in is. it will be friday morning at 10:00 a.m., despite trump's lawyers saying they preferred a court date early next week. so trump's lawyers, they cited the fact that they have to be at that hearing in the classified documents ka isin florida on thursday as part of the reason they wanted to push this to next week. but judge chutkan, she had made initially clear that she wanted this hearing scheduled by close of business on friday. so the judge really wants this hearing to happen quickly because it will determine what kind of protective order will be imposed on the evidence that prosecutors hand over to trump and his team. erin, you mentioned it, meaning just how much of it will be kept out of public view. trump's attorneys, they're saying that in broad terms it will stifle trump's free speech if he can't talk freely about it. prosecutors, though, saying that this is all a play from trump for pretrial publicity. this could be quite a fiery hearing that unfolds friday morning. trump, though, will not actually be in the courtroom, his attorneys will. >> and it's important to say that because he is saying that i can't be in the courtroom. that is false. you are getting another new filing from trump's team right now. can you tell me what that is? >> yeah, just minutes ago we've got this two-page motion where trump's legal team, they're explaining -- they're expecting to be extensive trial prep that will be needed for this case. and because of that extensive preparation, they're making this motion to push back any start of a trial beyond the 70-day window that's laid out in the speedy trial act. so they're saying, look, this case is going to require interviewing hundreds of witnesses. they want to retain expert witnesses. they say they're going to have to review terabytes of information. so, erin, with this filing tonight they're once again signaling that they're going to try to do all they can to delay any quick trial on this. they're saying they need to delay it because of the unprecedented nature of this case, and they're expecting they'll need this drawn-out time line. but we've already seen the judge in this case tanya chutkan moving very quickly. so we'll see how she ultimately responds to these calls to try to push the trial. >> all right, that is a crucial request. thank you very much, jessica. i want to go to ryan goodman now, the former special counsel at the defense department, of course, and we also have the former head of the justice department's criminal division. he hired jack smith, and has remained in touch with him. so, let me just start with you on what trump did today, calling jack smith a deranged lunatic, attacking him on social media, as we all have seen, calls him a drug prosecutor, accuses him of acting at biden's request. how do you respond to these accusations? >> the president is just plain wrong. the truth is jack smith is a remarkable public servant. he has devoted decades of his life to fighting violent crime in new york, public corruption in new york, corrupt police officers, corrupt contractors and the like. he's been a war crimes prosecutor to help people who have faced the greatest devastation and held war criminals in kosovo to account. and now, once again, he's doing the work of the finest public servants in this nation. jack smith is a man of tremendous integrity. he's someone you'd be proud to have as a friend, a brother, a son. it's outrageous to call him anything but what he really is, a man who has not cared about money, has time and again turned down making lots of money to serve the public year after year. >> so, ryan, what do you make of what jessica's just reporting, the filing they just said to try to delay this beyond the 70-day window that you would have a speedy trial. they're saying hundreds of thousands of pages of documents, countless witnesses to interview. do they have a point or not? >> i think they have something of a point that she might very well extend the amount of time. but not indefinitely. it's not that gigantic. >> so beyond 70 days but not -- >> not very much longer. i think that this trial can get on the ground pretty fast. and also because it sounds like the department of justice is doing what they're doing in the classified documents case. they're trying to give as much evidence to the defendant, former president trump in this case, even ahead of what he has the right to get the evidence. some evidence you only have the right to get it on the first day of trial. but they are giving a lot of it to them now. >> and what about this hearing? here we're talking days. but the thing being, well, one of the lawyers involved in the doj case for trump is also in the mar-a-lago case and there's a hearing on that thursday. and so he can't be ready friday. do they have a point when they try to get these delays? >> not on this one. it's actually an extraordinary document on their part that they sent in response to the judge. the judge said here's my order. the two sides should come together and give me times and days that you can make this work but just for a hearing wednesday, thursday, or friday. they reply back, well, we both want to be there, and we can't both be there on thursday, and friday is lost, no explanation and they ignore wednesday. it's highly disrespectful. i don't think that's unintentionally disrespectful in a certain sense. so she said you didn't say anything about friday so we're going to do it friday at 10:00. >> i guess the point is it's not a day off. but that's interesting to point that out. when you hear trump railing against smith, as you pointed out, he's been doing that frequently. he's done this against other prosecutors who might still indict him. fani willis calling her a young woman, a racist. he's railed against mike pence. the list goes on and on. mike pence is likely to be a witness. and i mentioned that very purposefully because my question to you is when you look at his behavior and what he's saying. his crowds are chanting bull, you know, to repeat him, when he's talking about this case. can trump, will his words intimidate witnesses? >> well, erin, i think they might. the president -- president trump probably has the largest bully pulpit in the world. he has been aggressive in what he says. and for he's trying, i think, or the results of what he says could very well and likely intimidate witnesses and we know it's happened in the past. everything about the dynamic from the outside is that smith and his team want to go to court, are ready to go to court, have brought the indictment in remarkable time, and want to be before a judge and a jury. and everything it sounds like from president trump and his team is they don't want to be anywhere near the courtroom, they want to continue to demonize people, not talk about the facts, and label people so that the crowds that you were playing before just get more and more upset and aren't spending any time thinking about what are the real facts, what is the real law, and what should really happen in a courtroom. >> all right, thank you very much. and, next, a major leadership shakeup. ron desantis replacing his campaign manager in an effort to reboot his campaign. turmoil continuing there. the question is, has anyone ever been successful in a reset when they're nearly 40 points behind? plus, ukraine's president tonight acknowledging the counteroffensive is difficult and slower than many had hoped. we're going to take you to the trenches literally inside those trenches on the front lines to see what ukraine's forces are up against now. and troubling details emerging tonight about what was taking place just moments before that black city worker was attacked by a group of white boaters. how can you sleep on such a firm setting? gab, mine is almost the same as yours. almost is just another word for not as good as mine. save 50% on e sleep number limited edition smart bed. plus, 36 month financing on select smart beds. shop now only at sleep number. works hard at hour one and twice as hard when you take it again the next day. so betty can be the... barcode beat conductor. let's be more than our allergies! and for fast, allergy relief with a powerful decongestant, try zyrtec-d. what do we always say, son? liberty mutual customizes your car insurance... so you only pay for what you need. that's my boy. ♪ stay off the freeways! only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪ your wyndham is waiting. whether it's for the bucket lists... the free breakfasts and wifi... or the... romantic getaways? 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( ♪ ) get a free storage upgrade when you pre-order at verizon. tonight, ron desantis making yet another major shakeup to his campaign, this time at the very top, the florida governor replacing his campaign manager with his longtime chief of staff, who is governor. this latest shakeup coming just two weeks after desantis fired a third of his campaign staff as he is struggling to gain ground against the three-times indicted donald trump. so harry enten joins me now. the desantis campaign obviously is trying to reset. yeah. >> and i guess let's look at it this way. he's way behind, not gaining traction. but then again there's nobody else really nipping at his heels so he sort of can see it if i can turn this around, i'm still the next one in line. okay, has anyone been successful resetting their -- be at this stage, with this big of a gap? >> a lot of people make the comparison with john mccain.he . and rudy giuliani also. connecting the first and the second segment. john mccain was down by ju 14 points. ron desantis is down by 38 points in the national polls. you can go back and back and back. there is just no historical analogy that matches with someone as far back as desantis is right now coming back and actually winning a nomination. >> all right. so it's interesting because tim scott, will hurd, one thing they're all saying is you, gop, nominate trump, we lose to biden. they're all saying it to try to say pick somebody else. desantis is obviously making that argument that, you know, you pick him in the primary, he won't win in the general. is that true? >> i don't believe it's true looking at the polling data. we always say, oh, trump manages to survive these indictments and still is leading the republican primary polls. but look at the national polls against joe biden. he's right now tied with joe biden. we just had a "new york times" siena college po that came out last week. he was trailing last year. he gained three points on the margin relive to biden since the indictment's happened. so this idea that donald trump can't win a general election against joe biden, in my mind, is total fantasy looking at these national polls right now. >> so, ron brownstein wrote an article saying how could it still be tied like that, how could it still be 43-43 when you look at a three-times indicted ex-president. and still this country is split evenly. >> cbs news d a fascinating poll question that says what is more concerning to you about the trump indictments, either a that they're politically motivated or that trued to overturn the 2020 presidential election result. 30% said it was more cceing that the indictment was more politically motivated. that is what's going on. >> 24% both. to really just add another 12 to each. >> it's dead even on this. >> it's incredible. what an incredible moment. a hinge of history. thanks very much, harry enten. so joanna goldberg is with me, along with the former executive director of the new york state democratic party. so, jonah, here we are, whatever moment we're living in, it's split, it's split right down the middle. so, in this moment, you've got trump lashing out against everybody that loses. mike pence, nancy pelosi, that was a real doozie. people can go look it up. the u.s. women's socce found a way to slam them, and then i was struck by a line in "the atlantic" today that reads the former preside public behavior since special counsel jack smith indicted him lastk suggests a man feeling cornered. his handling of the case suggests a man rattled in a way he seldom has been before. jonah, i don't know if you agree with that, but it is interesting that even if that is the case, the poll numbers simply do not show him being hurt at all. >> yeah, so i agree with it a little bit. if you look at that rally footage of him, he does look like he ate a big bowl of bad clams. he's sweating, he's flustered, looks like he may be in gastrointestinal distress. but who knows. he's also a guy who always lives in the moment. i think picking up on stuff that harry enten was saying, one way to think about this is that both of these guys, both biden and trump basically have poll numbers like very weak incumbent presidents. biden's the actual incumbent president. but about half of democrats want somebody else. and donald trump lost the last election, but a bunch of republicans wrongly think that he didn't. and he has close to about half of the republican party in his column as well. if you had -- normally historically go back to lbj, an incumbent president without half the party is in a very weak position. but we seem poised to do what we did in 2016, which is to nominate two candidates so unpopular that they have a chance to lose to the other one. >> there's a logical conundrum for you. so, let me play for you some of what trump said today about the d.a. fani willis. and i mentioned this earlier. he called her a racist. this is in fulton county, georgia, where he is facing possibly another indictment. here's what he said. >> i probably have another one, they say there's a young woman -- a young racist in atlanta. and this is a person that wants to indict me. she's got a lot of problems. but she wants to indict me to try and run for some other office. >> there, of course, was the insult "young woman." a young racist, a racist. >> right. remember, we've heard this before. go back to 2016 in his primary election. he would often denigrate judges. and, remember, he would do that with the nation's generals also. so he has a history of really going after institutions, and the public servants that serve these institutions. so, i do think, to sort of the tease at the beginning of the segment, that there is this sense that he's acting like a cornered animal. but the reality is that's sort of his permanent posture. and the challenge therefore is that he in, denigrating and in diminishing the institutions, it gins up his base. the concern that i have is that -- and i work with a lot of students, a lot of young people, and democrats really need them in 2024, that have similar concerns about this nation's institutions. they're concerned about the lead errors on the right but also on the left in terms of their, are they telling us the truth, are they real and going to support us. so while donald trump is doing this to motivate and mobilize his base, i think the burden on democrats is to make sure -- and i think joe biden has done this as president -- is to make sure that our core constituencies, young people, african americans in particular, are aware that it's these institutions that have been a source of political social and economic power. certainly seeing the proxy of that in ohio with this vote on an issue like reproductive rights that is a mobilizing factor for so many democrats. so, it's a play that donald trump always goes to, but democrats, i believe, have an opportunity to push back. >> i want to ask you more about that because we do of course have this special election in ohio tonight. but ron desantis first. obviously he has failed thus far to challenge trump successfully. although he's done better than anybody else in the national polls. but "the messenger," he reports that -- this was sort of interesting -- that the new campaign manager, desantis' new campaign manager refuses to call the shakeup a reboot. instead, they're calling it a reload. sorry, you made me laugh twice tonight, jonah. okay. i am a believer that words matter, but sometimes it is not a sign of strength. what do you make of this? >> i think he is smart to shake up the campaign again, whatever verb we're going to apply to it. i think that the problem -- the problem is that desantis came out of the bloc with the wrong theory about the gop electorate. he basically came out with a theory that he was going to run to be the ted cruz of 2024 and come in a really strong second by not challenging donald trump, by not trying to peel away donald trump's voters for a very long period of time. and now he's starting from a real disadvantage because he's burned through a lot of money, and he has to sort of reinvent his theory of the electorate. so i think it's smart to sort of shake things up. but it's going to be hard. >> you mentioned the ohio special election. obviously, it is a hugely consequential special election. it's on changes to the state's constitution. widely viewed, as you mentioned, as a proxy vote on abortion rights in the state. ohio is a crucial state. it used to be that you couldn't get to the white house without it, it has become more and more a red state. what do you think about the outcome tonight, how significant could it be? >> well, i think it can be very significant, not just because of ohio's historic place in general elections, but i think it is an additional opportunity for those who support reproductive rights, those who have been pushing back against the supreme court decision, and those that do care about the mobilization of democrats or even independents in advance of a general election, that this matters significantly. whether it's ohio, we could be talking about pennsylvania. michigan has had other ballot measures. there's another in mississippi. it's an opportunity to continue to mobilize the base. and to that point, any opportunity that you can to have sort of democrats and independents going out there and voting in line with the biden administration, that's always a plus. >> all right, thank you both very much. i appreciate it. and those polls in ohio are closing in just a few moments, 7:30 p.m. eastern. we're going to be following those results and bring you the updates as those votes come in. meantime next, the exclusive access that we have to video from a ukrainian soldier actually going into the trenches, having to dodge russian strikes. and it is a story you will see first here "outfront." plus, police are now revealing new details about the moments leading up to that massive brawl between a 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commitment. could you turn down the volume? here, you can try. get way more into what your into when you stream on the xfinity 10g network. tonight, ukraine says it's advancing in the south, but heavily mined russian defenses continue to hamper progress. this comes as president zelenskyy continues to acknowledge that ukraine's counteroffensive is difficult. on the eastern front line, which ukraine's military calls the epicenter of the fighting, we have new video tonight, this into "outfront," showing ukrainian soldiers clearing out russian positions. that's what you're looking at here. a chechen fighter lifting his head out of the trench, quickly trying to hide. the ukrainians do open fire on him. well, those trenches are deadly. and tonight we have exclusive access inside a trench through footage shared by the ukraine military with our nick paton walsh, who is there, and it is a report that you will see first "outfront." i do want to warn you, though. what you're about to see tonight is graphic. >> reporter: even saving the dead can be lethal work. it is dawn and freshly overrun russian positions on the southern front where the assault is on trench networks spread out in the open. this is rare footage letting us see the point of view of a ukrainian soldier and body collector. his unit tasked with bringing back the fallen, their own, but also russian dead. this ukrainian body seeming to have almost melted into the ground. the heat speeding up decay. another factor in this grim, grueling work where they are often guided to their targets by the smell from which the masks aren't protection enough. >> reporter: russian drones see them, and they watch them back. antidrone rifles, a modern twist in trench warfare from the last century. it is exhausting work, while troops here focus on survival and taking cover, he and his team must carry these heavy but vital burdens all the way back to the road where they can then bring closure to the grieving, the chance of burial and a good-bye. a week earlier in another part of the trenches where the fight has clearly been ferocious, they past western supplied armor that has been torn apart. ukrainian remains found, but the shelling is constant. >> reporter: the search, however, in these captured russian positions, is cautious, probing each spot for mines. for the men holding their position day and night, the body collectors are welcome relief, taking away the reminders of how close death is. the russians still looking for targets here among the men rescuing russian corpses. it is the work nobody ever wanted to do, out exposed in the open, as ukraine prays for a breakthrough. now, we finally see his face in the moment when they know they've survived another day. the relief they feel here, nothing compared to the families who may feel some less agony and closure from the cargo they return home. nick paton walsh, cnn, zaporizhzhia, ukraine. >> the cargo, of course, is human bodies. and now retired army lieutenant general ben hodges joins me. you just heard ukrainian soldiers in that piece, wondering why the russians fire on them when they're recovering the remains of fallen soldiers, many of whom are russian. they say that russia knows this, russians firing on them know that they are in there recovering the bodies of dead russians. they choose to fire on them anyway. what do you make of that? >> so, erin, thank you. the u.s. army also has what we call a graves registration team. and these are professional soldiers who are out there to help recover remains of our soldiers who have been killed in combat. this is an important part of how we do things. soldiers know that if they fall on the battlefield, that there is a whole system that will bring them back. and this is the important part of the moral component of warfare. and what you just showed in this excellent report by nick, how the russians view their soldiers versus how ukrainians treat their soldiers. i don't know if you could find a starker difference than what we just watched. >> the horror of it too, they see something and they say i can smell it, that there's something here. just viscerally bring it to all of us. general, the ukrainian news outlet is quoting the german defense minister saying he opposes sending cruise missiles to the military. and he points out that the united states has not sent those cruise missiles to ukraine either. we've talked about them a lot, the atacms. why do you think this is such a major mistake at this time? >> so, i was very disappointed when i saw that the minister had said there was no need. but he's also right. the united states has also failed to make the decision to provide this long-range capability to ukrainian forces. look, the key to success here is the liberation of crimea. and the way that happens is by making crimea untenable where the russians can't sit there and use the port of sevastopol, which is inside the range of atacms missiles. so i don't understand how anybody, especially after watching the report you just showed, how anybody can say that there is no need to provide ukraine with the ability to strike long-range with precision against russian bases, against russian artillery, against russian headquarters. that's how you neutralize the only advantage that the russians have. so, to say there's no need is terribly poor judgment. but this goes back to the administration's either failure or unwillingness to say we want ukraine to win. when they say that, then all these excuses will fall away. >> i saw a pretty incredible chart today. it was the chief economist at the institute of international finance. he showed that while german exports to russia are down significantly since the war began, all these sanctions in place, that the german exports to kazakhstan have more than doubled. and german exports to central asia, places like kyrgyzstan and belarus have nearly doubled. the whole point is that that's how russia is getting what it needs. it's coming in these other ways. how much do you think this is helping putin's war effort? >> well, i think it's helping in two ways. first, there's a practical way where actual material and funds are coming in to russia so that they can continue this fight. and, by the way, they're getting equipment and material through north korea that are actually coming from china as well. so this helps keep them in the fight. but it also helps russia in another way. it shows that we are not 100% committed. if we were 100% committed, we would be doing what vice president harris said 18 months ago, sanctions like you have never seen before. >> all right. general hodges, thank you very much. i always appreciate your time. and, next, the three people charged tonight after a black man was attacked by a group of white vboaters. we're learning what led to the violent brawl. plus, the suspected gilgo beach serial killer is now refusing to cooperate with investigators. the sheriff in the case will be "outfronont." start your day with nature made. the #1 pharmacist recocommended vitamin and supplement brand. you're watching football wrong! what do you call a guy in face paint that can't get the game? ...a clown! sorr what app was it again? no, no. just givme a second... amateurs. ohhh! soy everybody. directv sports central gives you access to every game... ...so you never have to compromise on gameday. ...was that necessary? i was just illustrating a point. oh. get in the redzone with sports pack. call 1-800-directv i'm saving with liberty mutual, mom. they customize your car insurance so you only pay for what you need. you could save $700 dollars just by switching. ooooh, let me put a reminder on my phone. on the top of the pile! oh. only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪ my relationship with my credit cards wasn't good. i got into debt in college, and no matter how much i paid, it followed me everywhere. the high interest... i felt trapped. debt! debt! 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wellness centers, food pantries, and parental education. jessie: they're already making a difference. david: california's community schools: reimagining public education. breaking news just into "outfront." we are getting the first results from a special election in ohio. an election that could have serious implications on abortion rights. the people in ohio tonight are voting on a ballot initiative and what it would do would be to raise the threshold of votes needed to amend the state constitution. and it would raise it from a simple majority up to 60%. why does this matter? it matters because it's a republican-backed proposal that would make it more difficult to enshrine abortion rights into the state constitution this fall. you need to have 60% of the votes to do that as opposed to a simple majority. and this fall is when voters will be casting their ballots on an amendment that guarantees women's access to abortion. so obviously this is a crucial vote tonight. 3% of the vote in, that's all we have right now. but it is, obviously, 3%. let me emphasize. but 85 -- or 86% of people right now are voting against raising that threshold to 60%. 14% have voted in favor for it, so obviously dramatically against the republican proposal right now with 3% of the vote in. we'll continue to monitor those results as they come in throughout the tonight. also we are learning about what led to that massive brawl in alabama. a group of white men attacking the black co-captain of a river boat trying to dock. today three men have been charged. more charges, we understand, are coming. i want to warn you that the video you're about to see is disturbing. ryan young, once again, is "outfront." >> you see stuff like that on the tv. but to see it live and being a person of color, you have those stories from your grandmother about how it used to be and how wrong it was. so, it was hurtful. >> reporter: clayton thomas was witnessed the fight that took place between a group of white boaters and a black employee that escalated on a riverside dock in montgomery, alabama, on saturday. the incident occurred after the riverboat's co-captain damien pickett tried to clear the dock space where the riverside cruiser normally docks. the montgomery police chief darryl albert announced that three men have been charged with their involvement in the incident. >> we're also asking for mr. reggie gray, the black male, 42 years old, who was seen to contact the montgomery police department for further interview. >> reporter: the chief also identified the other victim today, a 60-year-old white male whose mother signed an arrest warrant. the river cruiser idled for about 40 minutes while the captain was prevented from docking and first attempted to contact the pontoon's owners. >> the co-captain was then picked up by a separate vessel and brought to the pier in an attempt to have a conversation with the private boat owners and/or have those boats moved so that the harriott could dock. a confrontation ensued between the co-captain and mr. pickett being attacked by several members of the private boat. >> everybody was yelling, hey! and the captain, everybody is cringing because he's getting stomped and kicked. >> reporter: while it appeared to be largely split across racial lines, the police chief said at this time, there is not enough evidence to meet the criteria to charge for a hate crime or inciting a riot. >> knowing montgomery's history, knowing all the civil rights things that we went through here the city of montgomery and what that means to the nation. we were very amped up to get this right. we'll continue to do all that we need to, to ensure that we get it right. >> reporter: montgomery's mayor says the investigation isn't over yet. >> you can't allow your emotions or your initial thoughts to get out in front of what the facts tell you. and, so, while this is an ongoing investigation, so far, the facts are kind of, you know, separating themselves from what was fiction. >> reporter: erin, right there you see the boat behind me, the harriott ii, as it sits here. there are some new signs to show where people can and cannot park. but there's a lot of questions about how this investigation will move forward. we're also waiting to hear from police about the three arrests. we know one person's in custody. but we believe two others will be brought into arrest in selma, alabama, and then transferred here to montgomery. so still a lot of questions, but obviously a community that's trying to heal. >> ryan, thank you very much. next, the suspected gilgo beach serial killer now reportedly refusing to provide investigators dna, direct dna, which could be very important for the prosecution. the sheriff in the case is next. and more reports of possible sharks tonight after the first attack at a new york city beach in 70 years. when i was diagnosed with h-i-v, i didn't know who i would be. but here i am... being me. keep being you... and ask your 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effects were diarrhea, nausea, and headache. no matter where life takes you, biktarvy can go with you. talk to your healthcare provider today. tonight, suspected serial killer rex heuermann refusing to provide his dna to investigators. news day obtaining documents where heuermann's lawyer is trying to block a cheek swab arguing that prosecutors have not shown probable cause in the three murders he's accused of committing. joining me now, the suffolk county sheriff. i'm glad to speak to you again. probable cause in the case of a possible serial killer seems a strange thing, but that's the argument that's being made. the d.a. wants heuermann's dna. currently they have might oh kond reial dna from pizza crust heuermann allegedly discarded in manhattan that prosecutors say matched a hair sample found on burlap that was used to transport the remains of one of heuermann's alleged victims. but in these court documents, they're saying without a direct sample of his dna, prosecutors might never be able to get this beyond any kind of a doubt. they might not be able to get total proof. how important is this dna, and do you think they'll be able to get it? >> first, thank you for having me on. gathering his dna is extremely important to this case. you know, clearly it's left in the hands of the judge to decide whether to go forward and get a dna swab or not. so that's where we have to wait and see what's going to happen with the judge's decision. >> do you have any doubt at this point that heuermann is the person behind these murders? >> from what the task force has gathered and what we have disc discussed, i have no doubt that he is the person that killed those three women. >> so, sheriff, he's been in your jail now for 27 days, and you and i have talked a few times. he's obviously in solitary, but he's been able to have his walks alone in the jail yard. he was able to make some phone calls, able to receive mail. how is he spending his time now? >> he's spending his time alone. he's not in solitary. he's just in a housing area by himself with two corrections officers. but more importantly, he's making phone calls. he is reading some books. he's participating in recreation. so, you know, he's acclimating to jail life. >> any theme of the books he's reading? >> the best i can tell you is that they're fiction. you know, he's read or reading a couple books that he has inside of his cell. i visited him a few times. the last time was late last week. he seems very comfortable. >> all right. you're there. i'm sorry. you said very comfortable. one last question, i know his family has not visited him. we do know, sheriff, from his wife that he's had conversations with her. and i know you've told me you don't monitor those calls. but are you able to tell us any sense of how often they're speaking? i know his children, at least as we understand, his adult children, have not spoken to him. but he and his wife, how often are they speaking? any sense of his demeanor or the topic of those calls? >> my staff has informed me when he makes the phone calls, they're just very casual conversations. of course, we wouldn't monitor any phone calls between a husband and wife or between an attorney and those that are incarcerated. but he seems very comfortable with making various phone calls. >> all right. sheriff, i appreciate your time. i always do. thank you. >> thank you. next, a popular new york city beach closed after a shark attack. and tonight reports of more possible sharks. re sleeping. so why do we leave so much untapped p potential on the tab? this is a next level bed, for a next level you. my circadian rhythm is kicking your circadian rhythms butt! it's not a competition. i know, but i'm still winning! so, it is a competition. save 50% on the sleep number limited edition smart bed. plus, 36-month financing on select smart beds. shop now only at sleep number. what do we always say, son? liberty mutual customizes your car insurance... so you only pay for 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shark sightings off of the coast of new york. the sightings coming a day after a 65-year-old woman was bitten at rockaway beach in new york city. the first shark attack at that location in 70 years. according to police, the woman was standing in the water when she felt a sharp pain on her lower leg. she is believed to have lost about 20 pounds of flesh because of the bite. she was taken to the hospital and said to be in stable condition. at this hour, the beach remains closed and the nypd is scouring the area with drones, looking for sharks. thanks so much for joining us. we'll see you back here tomorrow night. "ac 360" with anderson begins right now. tonight on 360, trump sweating, swearing and ranting in new hampshire, issues a darkly familiar warning about what he'll do in 2024. the future of abortion on the ballot in ohio tonight. results