The mishnah tells us that if one's guilty verdict was not yet pronounced by the court and the kohen gadol dies and then a second kohen gadol is appointed, the murderer is released only after the death of the second kohen gadol.
The gemara asks what was this second kohen gadol to do--and rashi explains that since the murder did not take place during his tenure as kohen gadol he should not be punished by death.
And the gemara answers the kohen gadol should have prayed that the verdict of the murderer should be in his favor, that is, innocent
My question: Is it right for a kohen gadol to pray that a court should pronounce a verdict of innocence for a guilty murderer?! Furthermore, isn't the verdict of a court a matter of halakhah, and not a random accident that can be influenced by prayer?!
We addressed these questions in our Insights, which I copy below.
3) DAVENING FOR A FAVORABLE VERDICT
QUESTION: The Mishnah states that if a person accidentally kills, and the present Kohen Gadol dies before the killer is sentenced to Galus by Beis Din, then the killer leave the Ir Miklat when the next Kohen Gadol dies.
The Gemara asks that we learned earlier that the Kohen Gadol's death is an atonement for the accidental killers, since he should have prayed more to ensure that such calamities not occur to the people of his generation. The second Kohen Gadol, however, was not the Kohen Gadol when this killing occurred. Since he was not responsible for the people at the time of the killing, why is his death an atonement for the killings? Why is he held partially responsible if there was nothing he could have done to prevent the killings? The Gemara answers that he should have prayed -- when he was appointed as the Kohen Gadol -- that this accidental killer be found innocent.
What does this mean? If the person indeed killed accidentally, then why should he Daven that the judges of the Sanhedrin find him innocent and exempt him from Galus? How can he pray that Sanhedrin err in their judgement of the killer? If the killer is guilty, then he should be judged accordingly!
(a) The ARUCH LA'NER and CHEMDAS YISRAEL suggest a novel idea. They explain that the Kohen Gadol should have asked for Heavenly mercy in order that the killer's sin be forgiven. Once the sin would have been forgiven by Hash-m -- thereby causing the perpetrator not to have to go to Galus in the judgement of Hash-m, Hash-m would then sway the hearts of the judges to declare him innocent as well (since he no longer needs atonement). The court's judgement would not be in error, but rather it would be what the person genuinely deserves according to the Divine plan.
(This approach implies that a sinner who did complete Teshuvah for his sin would not be found guilty by Beis Din, which is a problematic implication. See further discussion on the matter in Insights to Makos 13b.)
(b) The IYUN YAKOV answers that the Gemara in Sanhedrin (17a) teaches that when all of the members of Sanhedrin agree unanimously that a person is guilty in a case of capital punishment, he is automatically exonerated from punishment (see Insights to Sanhedrin 17:2 for the reasoning behind this law). If the Kohen Gadol intervenes by praying to Hash-m and causing the sin to be forgiven, then this will cause the Beis Din to unanimously rule that the defendant is guilty . In this way, Beis Din will not be making a mistake regarding the judgement, and the defendant will be exempt from receiving a punishment that he no longer deserves. (Y. Montrose)
Couldn't you also answer this by saying that the Kohain Gadol should have davened for a hak'chasha between the eidim (e.g. bdika b'uktzin shel te'anim)?
Carl M. Sherer
The main points of the question is, why should someone pray that justice not be done? If the witnesses contradict each other, justice will still not be done, and a murderer will escape unharmed.
The answers given in Insights are either that there will be no need for justice, since the sinner has fully repented. (In such a case, the sinner might indeed be exonerated by means of a contradiction of witnesses or any other "fault" in the testimony or in the logic of the judges.) Second, when all the justices find a person guilty he is exonerated from punishment (perhaps because he does not deserve an atonement). The Kohen should have prayed for that to happen. Although this will mean that the sinner will not be atoned by the court's ruling, nevertheless, if the sinner desires atonement, he can always willingly exile himself and achieve atonement, after proper repentance (see Insights to Makos 10:3).