Calvin Barry

Jan. 12, 2004. 06:42 AM
Deliberated over four days in gang-related shooting death Victim's family distraught; accused plan to hug children
PETER SMALL STAFF REPORTER

Two Toronto men have been found not guilty in the gang-related shooting of a Christie Boys strongman in a west-end bar.

Alejandro Vivar, 23, showed little emotion and stared straight ahead in the courtroom, while James Tamburini, 28, sighed with relief after the jury's verdict was read out yesterday, bringing to an end their first-degree murder trial.

But the mother of Gary Malo, 26, who was shot once in the chest and once in the head at close range last Feb. 23 in Jose's Cafe, cried and shouted in Spanish. Guards escorted her from the courtroom on the orders of Mr. Justice Michael Dambrot.

A man who was with her rose in anger but was ordered to sit down by security guards, who were reinforced by a half-dozen police officers at the University Ave. courthouse.

Another close relative of Malo's, looking flushed and devastated, sobbed uncontrollably and was comforted by friends.

The two accused, who spent 20 months in jail awaiting trial, hugged family members and supporters after they walked from the courtroom. They were freed by the judge on $5,000 bail on charges of obstructing justice related to the case.

"I feel wonderful," Vivar said. "I would just like to thank my lawyer, John Struthers, for having faith and believing in my innocence, and I'd just like to thank my family for their support and I'd just like to thank God for being there for me."

He said the first thing he was going to do last night was hug his 3-year-old son.
"I feel great," echoed Tamburini, the father of a 3-year-old girl. "I just want to go home and hug my daughter."

The trial shone such a spotlight on gangs, guns and drugs in the Bloor St. W. and Ossington St. area that the judge warned jurors not to let that cloud their judgment. The two men were not being tried for their lifestyles, he said.

The jury heard about cocaine deals gone sour, revenge beatings, brutal robberies and pistol-whippings, much of it allegedly inspired by Vivar.

Crown Attorney Calvin Barry alleged that Tamburini helped Vivar, who was a member of the Latino Americanos (LA Boys), lure Malo to the bar to kill him in revenge for his shaking down and beating fellow LA Boys members.

But the crown's case was built almost entirely on the testimony of two brothers — Frank "Tools" Jocko, 27, and Chris "Smokey" Jocko, 25 — who were backup muscle for the LA Boys and allowed their parents' Concord Ave. home to be used as a gang clubhouse.

They testified that Vivar pulled the trigger of a .38-calibre revolver after Tamburini bolted the bar's front door to trap Malo, according to the crown.

But defence lawyers argued the Jocko brothers fingered Vivar and Tamburini to cover their own role in the killing.

The judge warned that evidence from these two star crown witnesses should be viewed "with the greatest care and caution" because of their unsavoury character.

The brothers stashed LA Boys guns, stolen goods and drugs in their parents' home. Chris Jocko admitted to robbing people at gunpoint.

Even more damaging to their credibility, they admitted to lying to police and perjuring themselves at the preliminary hearing.

Vivar took the stand last month and denied pulling the trigger, claiming instead that in the minutes before the shooting, he tried to defuse an angry confrontation over money between Malo and the Jocko brothers.

After Malo suddenly charged toward the brothers, they rose to face him shoulder to shoulder, blocking Vivar's view, he said.

Vivar testified that he then heard two shots. "I see Malo drop and at that second I just wanted to get out," he said. "We were in shock."

The only other eyewitness to testify against the accused, Malo's friend, R.S. Gill, identified Vivar as the shooter. But his identification can have "no significant value," the judge said.
The jury deliberated for 27 hours over four days before reaching its verdict, coming back seven times with questions for the judge.

At one point, the jury sent a note indicating that two like-minded members said they would not change their minds no matter what. Dambrot urged the four female and eight male jurors to keep trying to reach a verdict.

Crown counsel Barry said he respected the result. "Cases with gang allegations and ties are always going to be problematic because a lot of our witnesses are not choir boys," he said. "You don't get them from a casting agency."

Detective-Sergeant Al Comeau said he was extremely disappointed with the verdict. "We had three witnesses who all saw the same person pull the trigger and execute Gary Malo," he said.
He said he was particularly disappointed, considering the efforts Toronto police are making to fight street gangs.

Struthers, who with co-counsel J.S. Vijaya defended Vivar, said he was relieved at the verdict.
"In this day and age when there is so much publicity about guns and drugs and gangs, the mere aura makes it very difficult to concentrate on the case at hand."
"The only evidence they had came from the ever-changing word of two admitted perjurers," she said. "We're ecstatic.

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