Judge says evidence indicates U-Haul killer competent to be executed

Scott Sonner

Tuesday, March 9, 1999 | 3:01 a.m.

RENO, Nev. -- A federal judge considering whether to block the execution of Alvaro Calambro said Tuesday there is no evidence the convicted killer was incompetent when he agreed to accept the death penalty without appeal.

U.S. District Judge Howard McKibben said he intends to decide before the end of the week whether to dismiss an attempt by Calambro's mother to challenge the death sentence for her borderline mentally retarded son.

"I find nowhere in the record a statement by any of the psychiatrists or psychologists that in their opinion ... they would conclude Mr. Calambro is legally incompetent," McKibben said Tuesday.

Michael Prescetta, a public defender for Lydia Calambro, said he likely will appeal the case to the 9th U.S. Circuit Court of Appeals in San Francisco if McKibben dismisses her case.

Last month, the U.S. Supreme Court refused to hear a related challenge that made its way through the state court system.

Calambro has said he deserves to die for the killings of two U-Haul workers in Reno five years ago. One had a tire iron driven through her skull and the other's head was crushed by a hammer.

"He understands he's being put to death because of the absolutely horrible things he did here in Washoe County five years ago," said David Sarnowski, Nevada assistant attorney general.

An execution was scheduled last summer, but McKibben stayed that pending the outcome of the appeal to the Supreme Court.

Preschetta said Tuesday a series of psychiatric exams produced evidence that Calambro is incompetent and that he does not fully understand his rights.

Calambro, whose 71 IQ is one point above what is considered retarded, must be found incompetent before his mother's appeal can be considered.

"An individual does not have to be catatonic or raving or frothing to be incompetent," Preschetta said.

He told the judge that since his sentence, Calambro has told a prison psychologist that he made up stories about killing other people in California as well - a claim Calambro testified to in the proceedings that led to his death sentence.

"There's been no case where a person said, 'I didn't do the things the death judgment is based on, but I want to die anyway,"' Prescetta said.

McKibben acknowledged "there is some indication Mr. Calambro may have exaggerated his role in the murders."

But the judge said "the matters raised in the motion are matters I think have been fully and fairly considered by this court."

Prescetta said that while the doctors stopped short of diagnosing Calambro as schizophrenic, they cited numerous examples of behavior that indicated he was incompetent.

In one case, Calambro told a doctor he was considering starving himself so he could slip between the jail cell bars. In another case, he wrongly interpreted a letter from immigration officials to mean he was being sent back to his native Philippines rather than being executed.

"The question is the evidence they found, not their conclusion. They are wrong," Prescetta said about the doctors.

McKibben disagreed.

"You can always point to behavior that appears to be delusional. The court relies on professionals, psychiatrists and psychologists, to assist us in making these decisions," he said.

Sarnowski acknowledged Calambro "certainly has a lower than average IQ," but that psychologists determined he had a personality disorder and was an "antisocial fellow," not incompetent.

"Mr. Calambro understands he'll be put to death and essentially what death means. He has a right to file challenges but simply doesn't want to," he said.

"The burden is on Lydia Calambro to prove Alvaro is not capable of waiving his rights," he said.

Sarnowski quoted from Calambro's earlier testimony indicating he didn't want to appeal.

"One can only wish he'd said this when he was in the U-Haul that night, 'I just choose to go no further."'

Prescetta said the prison exams show "because of Mr. Calambro's mental deficits, he is unable to consider the possibility that the judgment of death imposed by the state court could be wrong."

He quoted Calambro saying, "That's not my call to make. The judge made that decision. He has that right."

Prescetta said that "fits like a glove" with the psychiatrist's report that Calambro believes "if a government official says it, it must be true.

"That, your honor, is not rational," Prescetta said. "He is submitting to a death threat that he does not understand could be wrong."