NEWARK – Sen. Bob Menendez’s attorneys have a homework assignment tonight: find a federal case where the judge told jurors it’s perfectly fine to be deadlocked.

After the jury foreman wrote Judge William Walls Monday afternoon to say the panel was a hung jury, Menendez’s attorney Abbe Lowell had a simple suggestion: take them at their word. Thank them and send them home.

Walls disagreed, and jurors gave sorting out their differences another try today, and will continue tomorrow.

But keeping deliberations going poses a risk for Menendez. Though a dismissed juror indicated last week that the jurors  inclined to acquit Menendez outnumbered those who want to convict him, no outcome is guaranteed inside a jury room.

Hours of persuasive argument can turn a hung jury into a convicting one just as it can one which ends with an acquittal. Raymond Brown, a veteran Essex County litigator and part of Menendez’s defense team, rose this afternoon to tell Walls his jury instructions had missed something.

“In neither of the charges you presented…did you indicate a deadlock was an acceptable result, a hung jury,” Brown said.

Brown and Murad Husain, an attorney for Menendez’s co-defendant Dr. Salomon Melgen, worried jurors believe they have no choice but to gut it out until they reach a unanimous conviction or acquittal.

Walls balked and issued a challenge to the attorneys.

“Find me a case, nationally, where a trial court instructed a jury that a hung result could be appropriate,” Walls said. 

And thinking two moves ahead, Walls all but ruled out giving jurors a so-called “Allen charge,” also known as the “dynamite charge” because it is intended to explode opposition in a deadlocked jury.

“I abhor thinking about it,” Walls said.

“By my practice, I’m not even going to come close to thinking about it,” he added.

After some back and forth with Brown, who has appeared before Walls in Essex Superior and federal court for some 30 years, Walls ended the discussion. 

“There’s an old Walls expression your father taught me,” he said to Brown. “‘Put up or shut up.'”

For Menendez, his focus was on Senate Republican leadership this afternoon, starting his talk to the press with criticism of sticking a repeal of the Obamacare individual mandate into tax reform.

In front of a bevy of TV cameras and microphones outside the courthouse, Menendez said it was a move “I fully intend to fight.”

“And it is in that same sense of standing up I appreciate the jurors who have been standing up for my innocence during the course of the jury deliberations,” he said, “standing up for me as I have stood up for New Jerseyans.”