Beis Din doesn’t get a case unless someone brings the case. American courts get criminal cases when the public prosecutor (in New York, the District Attorney, of the United States Attorney) presents charges. A traditional Beis Din (when they had full criminal authority) requires witnesses to present charges. If the witnesses don’t want to present the charge, the Beis Din doesn’t hear the case. So if the witnesses don’t want to kill the criminal, the case will not be initiated. Therefore the situation in the question will never arise.
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