Shoah Abdul Vinh had been charged with first-degree murder but had convicted in a California Superior Court for the crime of second-degree murder, a lesser included offense

Question

Through his court-appointed attorney he appealed his conviction, and it was reversed based on an erroneous admission of evidence. The prosecutor filed new information against Shoah Abdul Vinh that charged him with the original first-degree murder and a new court-appointed attorney took the case. His new attorney
A) should prepare a defense for the first-degree murder charge since the Blockburger test for double jeopardy would hold that first-degree murder and second-degree murder are two separate offenses.
B) should prepare to offer a defense to first-degree murder because the double jeopardy provision of the Fifth Amendment has not been incorporated so as to apply against the states in their criminal procedure.
C) should prepare to defend Shoah Abdul Vinh against the first-degree murder charge based on the original trial because when Shoah Abdul Vinh appealed his second-degree murder conviction, he waived any argument under double jeopardy about being tried again for murder because he wanted a new trial.
D) should file a pretrial motion based on double jeopardy because the first jury had, by convicting him of second-degree murder, acquitted Shoah Abdul Vinh of the first-degree murder charge.
E) will not win a double jeopardy argument because in the first trial, Shoah Abdul Vinh had not been convicted of first-degree murder, so trying him for the top level of murder could not result in a second conviction for first-degree murder. If he is convicted of the top level of murder, that will be his first conviction for that crime.

Answer 1

D