to rule on the issue. The court refused, however, to extend its jurisdiction to the District Court's denial of a motion to dismiss. Recognizing that it would have asserted jurisdiction over this separate issue if the appeal had arisen under 28 U. S. C. § 1292(b), the Third Circuit reasoned that the governing principle behind the collateral-order doctrine was not judicial efficiency, but the separability of the order from the remainder of the case. Furthermore, the collateral-order doctrine was to be sparingly applied. 551 F. 2d, at 543. See also Forsyth v. Kleindienst, 599 F. 2d 1203, 1209 (CA3 1979). But see Metlin v. Palastra, 729 F. 2d 353 (CA5 1984); Dellums v. Powell, 212 U. S. App. D. C. 403, 405, n. 6, 660 F. 2d 802, 804, n. 6 (1981).

These cases betray confusion among the lower courts concerning the proper application of Abney to appeals arising under the Cohen doctrine. I would grant certiorari to clarify the law concerning this important and frequently recurring question.*

No. 84-812. GRAND TRUNK WESTERN RAILROAD v. MULAY PLASTICS, INC. C. A. 7th Cir. Certiorari denied. JUSTICE WHITE would grant certiorari. Reported below: 742 F. 2d 369.

No. 84-1128. DIGILIO v. NEW JERSEY. Super. Ct. N. J., Chancery Div. Certiorari denied. JUSTICE BRENNAN took no

part in the consideration or decision of this petition.†

Certiorari

No. 84-5811. GACY v. ILLINOIS. Sup. Ct. Ill. denied. Reported below: 103 Ill. 2d 1, 468 N. E. 2d 1171. JUSTICE BRENNAN, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

*United States Trust and its officers have filed a conditional cross-petition, No. 84-1018. I would also grant certiorari on the cross-petition, limited to the first question presented-the only question actually resolved by the Court of Appeals. That question is whether the courts below erred in rejecting absolute immunity for the defendants for their off-the-stand contacts with the Assistant District Attorney, leading to their allegedly false testimony before the grand jury.

†See also note, supra, p. 1025.

March 4, 1985

470 U. S.

JUSTICE MARSHALL, dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Illinois insofar as that judgment leaves petitioner's death sentence undisturbed. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.

The petitioner challenges two aspects of the Illinois capital sentencing scheme, each of which poses a serious constitutional question. First, after a sentencing jury has found one or more aggravating factors, the statute imposes on the defendant the burden of adducing mitigating evidence "sufficient to preclude the imposition" of the death penalty. Ill. Rev. Stat., ch. 38, ¶9-1(g) (Supp. 1984). The statute thereby places on the defendant the burden of proving that death is not appropriate in his particular case. As I have stated before in reference to this statute, I do not read our precedents as permitting a defendant to bear the risk of persuading a jury that his life should be spared. See Jones v. Illinois, 464 U. S. 920 (1983) (MARSHALL, J., dissenting from denial of certiorari).

Second, the Illinois statute places the decision on whether to convene a death hearing solely in the hands of the individual Illinois prosecutor. Ill. Rev. Stat., ch. 38, ¶9-1(d) (Supp. 1984). As a result, it vests in the prosecutor the unlimited and unguided discretion to select, among potential capital defendants, those who may be subject to the death penalty. The statute thereby introduces into the sentencing phase of trial-a phase in which our precedents require that discretion be carefully guided-an element of completely unbridled discretion, and it invites irrational and arbitrary decisionmaking. See Eddmonds v. Illinois, 469 U. S. 894, 895 (1984) (MARSHALL, J., dissenting from denial of certiorari). Because I continue to believe that this Court should consider both of these issues, I respectfully dissent from the Court's denial of certiorari in this case.

No. 84-5966.

rari denied.

SUMMIT v. LOUISIANA. Sup. Ct. La. CertioJUSTICE BRENNAN and JUSTICE MARSHALL would grant certiorari. Reported below: 454 So. 2d 1100.

No. 83-6865.

VINCENT v. LOUISIANA, 469 U. S. 1166;

No. 84-269. BLOOM v. UNITED STATES, 469 U. S. 1157;

LANDERS v. STATE FARM MUTUAL AUTOMOBILE

INSURANCE CO. ET AL., 469 U. S. 1159;

No. 84-788.

No. 84-5454.

No. 84-5749.

469 U. S. 1163;

STAPLES v. TOWNE ET AL., 469 U. S. 1162;

BRIDGES ET AL. v. PHILLIPS PETROLEUM CO.,

No. 84-5806. DAY v. SUPREME COURT OF TEXAS ET AL., 469

U. S. 1194;

No. 84-5828.

ROCCO v. CENTRAL MUNICIPAL COURT, COUNTY

OF ORANGE, 469 U. S. 1195; and

No. 84-5891. SLATER v. UNITED STATES, 469 U. S. 1195. Petitions for rehearing denied.

Certiorari Denied

MARCH 5, 1985

No. 84-6325 (A-666). WITT v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL. C. A. 11th Cir. Application for stay of execution of sentence of death, presented to JUSTICE REHNQUIST, and by him referred to the Court, denied. Certiorari denied. JUSTICE STEVENS would grant the application. JUSTICE POWELL took no part in the consideration or decision of this application and this petition. Reported below: 755 F. 2d 1396.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (MARSHALL, J., dissenting), I would grant Witt's application for a stay of execution. But even if I thought otherwise, I would stay this execution because Witt's petition raises an issuecrucial to the administration of capital punishment in this country-on which there exists a split of authority among the Courts of Appeals. This Court is certain to grant certiorari in the immediate future to resolve this issue, and our resolution will govern the question whether Witt's death sentence is constitutional. Under these circumstances, a denial of Witt's application for a stay is manifestly unjust.

MARSHALL, J., dissenting

470 U. S.

I

Witt was convicted of murder and sentenced to death. After exhausting Florida's postconviction remedies, he sought federal habeas corpus relief. The United States Court of Appeals for the Eleventh Circuit upheld Witt's conviction but reversed his sentence on the basis of Witherspoon v. Illinois, 391 U. S. 510 (1968). Witt v. Wainwright, 714 F. 2d 1069 (1983). This Court reversed and remanded. Wainwright v. Witt, 469 U. S. 412 (1985). A second federal habeas petition was filed in Federal District Court on February 26, 1985, while Witt was simultaneously exhausting state remedies. On March 1, 1985, the District Court denied habeas relief and an application for stay of execution pending appeal. On March 4, the Court of Appeals affirmed the denial of habeas relief and denied an application for a stay of execution pending disposition of a petition for certiorari to this Court. On the same day Witt petitioned this Court for certiorari and applied for a stay of execution pending disposition of that petition. Barring a stay by this Court, Witt will be executed at 7 a. m. on March 6, 1985. Witt alleges that his Sixth and Fourteenth Amendment rights were violated when the State submitted the general venire to a process of "death-qualification." The crux of Witt's argument is that the currently permissible, but constitutionally circumscribed, voir dire process in capital cases of excluding jurors opposed to the death penalty, see Wainwright v. Witt, supra, has the unconstitutional effect of rendering juries more predisposed to find a defendant guilty than would a jury from which those opposed to the death penalty had not been excused. This argument implicates both the right, to an impartial jury and the right to a jury from which an identifiable segment of the community has not been excluded. See, e. g., Taylor v. Louisiana, 419 U. S. 522, 538 (1975).

Witherspoon explicitly left open the question that Witt raises. The Court declined to address the question primarily because the empirical data then available were too fragmentary to permit conclusive resolution of the question whether "death-qualified" juries are unconstitutionally prone to convict. We made quite clear, however, that a sufficient empirical showing to that effect would raise grave constitutional questions:

"[T]he question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the

1039

MARSHALL, J., dissenting

defendant's interest in a completely fair determination of guilt or innocence-given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment." 391 U. S., at 520, n. 18.

See also Bumper v. North Carolina, 391 U. S. 543, 545 (1968). Our recent decision in Wainwright v. Witt, supra, in no way forecloses this issue, and may have made its immediate resolution imperative. See id., at 460, n. 11 (BRENNAN, J., dissenting).

The District Court in this case ruled on the merits of Witt's claim and rejected the argument that the "death-qualified" jury is unconstitutionally prone to convict. Tr. 17. In doing so, the court followed a recent en banc ruling of the the Eleventh Circuit rejecting the identical claim. See McCleskey v. Kemp, 753 F. 2d 877 (1985). To support rejection of the claim the Eleventh Circuit in McCleskey specifically relied on Spinkellink v. Wainwright, 578 F.2d 582, 583-596 (CA5 1978), cert. denied, 440 U. S. 976 (1979). In Spinkellink, the Fifth Circuit had held that, irrespective of empirical data showing that "death-qualified" juries are biased in favor of the prosecution, the process of "death-qualification" of capital jurors violates no constitutional rights of a capital defendant because the proposition that "a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a deathqualified jury might favor the prosecution and that a nondeathqualified jury might favor the defendant." 578 F. 2d, at 593–594 (emphasis added). The Fourth Circuit has in recent months also relied on the Fifth Circuit's analysis in Spinkellink to reject a challenge identical to the one presented in this case. See Keeten v. Garrison, 742 F. 2d 129 (1984).

A recent en banc decision of the Eighth Circuit directly conflicts with this established Fourth, Fifth, and Eleventh Circuit law. See Grigsby v. Mabry, 758 F. 2d 226 (1985). After carefully scrutinizing a large body of empirical evidence on which the District Court had relied in making the factual finding that "deathqualified" juries are more prone to convict, the Eighth Circuit ruled that a conviction rendered by such a jury violates the capital defendant's Sixth and Fourteenth Amendment rights to an impartial jury. Id., at 241-242 ("The issue is not whether a jury would be biased one way or the other, but whether an impartial jury