A fail-safe in the court

There's been something that I've been thinking about from a few days ago. We've established in previous posts that a court must be made of three judges. That way there will always be an odd number of judges in cases where the decision is not unanimous.

However, we learned a few days ago that if two judges render a decision and the third judge says "I don't know" then we bring in 2 more judges and we vote again. Here is the fascinating part of this ruling--it doesn't matter whether the two judges who render decision agree or disagree. In cases where one judge votes guilty and the other innocent, it makes sense why one should bring in more judges if the third abstains; without the third we have a split vote. But what about the latter case. Why do we need more judges when the first two agree on the verdict. Why, when the single judge votes yes while the other two vote no is he overruled, but when he abstains while the others vote no, we do not count this verdict.

A simple answer is that the Rabbis were militant about the need for 3 judges to "vote" because this is what tradition calls for. Therefore, this scenario looks at the judge who abstains as if we wasn't there and thus we have only 2 judges.

However, I would like to think it more complicated than this. I wonder if the act of abstaining is a fail-safe for the judges.  If we think that sometimes two judges might collude to bring down or vote for a defendant and then their votes would make a majority. I wonder if this is a way for a judge who knows that justice isn't being served to salvage the case. If we think that two judges are colluding to vote no on a case, where the third judge believes in his heart that any judge who is not scheming would vote yes, he can abstain from the vote and thus bring two more judges in who are not in cahoots with first two judges and will probably vote yes. This will ensuring a fairer trial.

I haven't seen any commentators speak about this idea but I wonder if the Rabbis thought about this idea of a fail-safe. Even if they didn't envision the law because of it, I bet it's come in handy before.