The state Superior Court on Wednesday said that a now-retired Allegheny County Common Pleas judge did not have the authority to prohibit prosecutors from seeking the death penalty.

The appellate court returned the criminal case against Deangelo Zieglar back to the trial court to proceed as a capital case, finding that Judge Anthony M. Mariani “usurped” the prosecution’s authority with his decision last year.

“As our review reveals, the trial court has acted outside the parameters of the law,” the court wrote in its 24-page opinion.

Mariani retired in March. He said he expects the decision to be appealed to the state Supreme Court but declined further comment.

The Public Defender’s Office, which represents Zieglar, is reviewing the opinion.

The case has not yet been reassigned to a new trial judge.

Zieglar, 28, is accused of killing his ex-girlfriend, Rachel Dowden, in Bellevue on Jan. 19, 2022.

She had gotten a protection from abuse order against Zieglar two months earlier.

In filing its death penalty notice, the Allegheny County District Attorney’s Office listed five aggravating factors, including that Zieglar was the subject of a PFA and had been previously convicted of robbery and gun charges.

However, when the case was moving toward trial — and the parties submitted their proposed questions for jury selection — Mariani said he would not allow the death penalty questions to be submitted to the potential jurors.

In a 10-page opinion, Mariani cited the years-long moratorium on capital punishment in Pennsylvania — first instituted by former Gov. Tom Wolf, and then extended by current Gov. Josh Shapiro.

Forcing jurors to sit through the “grueling and intrusive process” of jury selection in a capital case, the judge wrote, is “patently unjust,” particularly, he said, when there is no chance the death penalty will be carried out.

Experts in criminal law said there was no authority for Mariani to take such an action, and the DA’s office appealed.

In its opinion, the state Superior Court said nothing in previous court precedent or state statute allowed Mariani to ban the death penalty in Zieglar’s case.

It is the prosecutor that has discretion to pursue capital punishment, the court said, and as long as it follows the process the law requires — including proving at least one aggravating factor — the trial court has no say.

“This court has made clear it is the prosecutor’s discretion, not that of the trial court,” the Superior Court said. “Indeed … our Supreme Court has held that … the jury is the sole fact-finder and arbiter of death in a capital case.”

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