“They’re back,” he says.

“What?”

“The jury, they’re back.”

“A verdict?” I ask.

“I don’t know; Dee took the message. All she said is the jury is back.”

Typical of Dee Magnuson, she has given us a collective coronary. With Dee it is seldom sins of commission that one must worry about, but those of omission. She failed, when the clerk called, to find out why the jury was back. There may be reasons other than a verdict.

When we arrive in the courtroom, the jury is already in the box. They are not talking, but listening-to testimony being reread by the court reporter. It takes me several seconds before my mind zeros in on the colloquy being read. It is Nelson’s expert on the strand of hair, Mordecai Johnson-my cross-examination. This is cause for concern, that the jury is focusing on the only piece of evidence linking Talia to the crime, as if they are searching the record for some hook upon which to hang a conviction. Or maybe they’re just looking one more time, to assure themselves that in fact there is no compelling evidence.

But more than the words being read, a dry monotone by the reporter, I am concerned by something else that I see, there beyond the jury railing. Centered in the second row sits Robert Rath, my alpha factor. He is not where he should be.

I look at the seat, far left, front row, the chair nearest the judge, which should be occupied by the foreman of this jury. It is held by one of the four women I had tried to remove from the panel. She looks at me, a fleeting glance, as I stare, my mouth half open. So much for the science of jury selection. I have miscalculated badly, and I wonder if perhaps I have made other mistakes. For the first time I begin to question seriously whether this jury will be buying the theory of Tony Skarpellos as killer.

The reporter finishes with her notes, and Acosta looks to the jury.

“Madam foreman, is there anything else?”

“One of the instructions,” she says. “The one dealing with the defendant’s silence during this trial. We would like it read again, and explained.”

Harry looks at me. For the first time he is grappling seriously with thoughts of a death penalty phase. He doesn’t have to talk for me to know this. It is written in his eyes.

Acosta handles this gingerly, leaving the jury in the box, while Nelson and Meeks, Harry and I join him in chambers. This is required procedure in this state, a conference out of the presence of the jury before the judge may read or explain any jury instruction once deliberations have started. The Coconut is worried; he sees mistrial written in this request. He is beginning to wonder whether my assertions of Nelson’s body language may not have been closer to the fact than he’d realized.

He is on the prosecutor like a cheap blanket. Nelson is adamant that he has done nothing wrong.

This is a short meeting. We all agree. Acosta will read the instruction word for word; he will explain nothing. He will respond to specific questions if the jurors have any, and then perhaps only after a further sidebar with counsel.

Back out with the jury, Acosta reads the instruction. But this does not resolve their problem. It seems there is a real dilemma. One of the jurors has made a serious mistake. He has commented on the defendant’s failure to take the stand.

Acosta looks at me, trouble in his eyes.

I have heard and seen enough. I am out of my chair. “Your Honor, the defense moves for a mistrial.”

Nelson is up objecting, saying that this error can be cured. “The fact that the jury has collectively brought this to the attention of the court indicates that they understand the spirit, the requirement, of this instruction,” he says. “Certainly any problem is capable of being cured by further instruction of this court. We have spent too much time and effort to have a mistrial at this late date.”

But I am insistent. “The law in this area is clear. It is prejudicial error, prima facie,” I say, “for the jury to comment upon or to consider the defendant’s assertion of her Fifth Amendment privilege.”

Acosta’s in a quandary. The law is four-square on our side. There is not a principle in jurisprudence more firmly established. The appellate reports are filled with cases of convictions reversed for lesser cause than this.

Acosta calls us to a sidebar. He leans over the lip of the bench toward our faces, whispering so the jury cannot hear.

“A difficult problem.” He is all consolation now, trying to appease me. It’s a good argument, he says, my request for a mistrial. “But I think it is one best raised on appeal, if that becomes necessary.” He raises bushy eyebrows. “In good conscience, I cannot stop the trial at this stage. I must go forward. Put yourself in my place.”

In this he is, as ever, practical. Every gesture, each ruling calculated for effect.

“Your Honor, is it fair that my client should be put to the cost of an appeal?” I ask. “Have the threat of a conviction hanging over her head, perhaps for years?”

“She has not yet been convicted,” he tells me.

“Your Honor, look at them. Listen to what they’re saying.”

He makes a face, cocked off to the side at a forty-five-degree angle, a crooked smile, like he is not responsible for these twelve people. The message is clear. If I am not happy with this jury, I have no one to blame but myself.

“Your motion is denied,” he whispers.

We back away, and he puts it on the record.

Through all of this, I have been carrying a single piece of paper, the little receipt from the hardware store, the piece of paper from Sharon’s probate. I’d had it in my hand when Dee dropped her bomb that the jury was back. I have folded this thing into a million little squares as I wait, the product of my nerves.

Acosta reads the jury the critical instruction one more time, and delivers a blistering lecture on what it means: that they may draw no inference whatever from the fact of Talia’s silence in this trial, that they may not discuss the matter or allow it to enter into their deliberations in any way. In this, it is as if he believes that by these words, by these admonitions, he can cleanse the record, as one would unring a fire Klaxon clanging in the night.

The jury, sheepish now, returns to the task, behind closed doors.

We are a somber, ragtag assembly when we reach my office again. Tod and Talia have been hanging to the rear all the way from the courthouse, little conferences between the two of them. I suspect these are plans for appeal, ways and means to carry on with their lives in the event of a conviction.

As the flexing metal gate of the elevator slams open and Harry pushes the door that leads to the hallway, Dee is standing there, her arms held up as if this is some emergency.

“They are back,” she says. “The jury.” This time she says the magic words. “They have a verdict.”

I look at Talia, terror-struck behind me in the elevator. They have barely had time for a single ballot since we left the courthouse, an ominous sign.

The gauntlet of klieg lights and cameras with their laserlike strobes is particularly bad now. They block our access to the courtroom, looking for new file shots and footage for this evening’s news. The word is out as we arrive-a verdict is at hand.

Tod muscles one of the reporters out of his chair on the aisle behind the railing as Harry, Talia, and I take our seats at the table. Tod is in no mood to tarry with the reporter. Arriving with us in our official party, he gives the reporter one mean stare and the journalist decides to hunch down on one knee in the aisle rather than make a scene.

Acosta has instructed the jury to remain in the jury room until they are called. The judge is in chambers. We are the last to arrive. Nelson and Meeks are already seated. The bailiff sends the word back to the clerk, and ten seconds later Acosta comes out and ascends the bench, followed by the clerk. He nods and the bailiff knocks on the jury room door.