SAN JOSE — The Santa Clara County District Attorney’s Office plans to dismiss five criminal cases after determining that a former San Jose cop embroiled in a racist texting scandal had tainted the credibility of the police investigations.
In letters sent this week to the county Public Defender’s Office and several defense attorneys, the agency wrote that the dismissals stem from a review of 54 arrests, charges and convictions involving Mark McNamara, who resigned in November after an internal San Jose Police Department investigation revealed that he was behind “a series of virulently racist text messages.”
“We think this is extraordinarily important,” District Attorney Jeff Rosen said in an interview Tuesday. “Fairness is at the heart of the criminal justice system. Racism affects the community’s confidence that every arrest and conviction was fair.”
The cases slated for dismissal involve misdemeanor drug convictions against five people that will now be struck from their criminal records. Molly O’Neal, the county’s chief public defender, says that number should be higher and that her office is currently comparing the DA’s tally of affected cases to their own.
“I appreciate that they did a thorough review,” O’Neal said in an interview. “But I already know we have some cases that were not on their list, and there are cases that were not on ours. We’re probably going to have a different perspective on which cases they dismiss.”
Among McNamara’s more egregious texts — exchanged with an active SJPD officer currently on administrative leave and a former department officer — were remarks that insulted a Black man McNamara shot and wounded in 2022. McNamara also made casual threats toward the attorneys representing the man in a federal excessive-force lawsuit against the city. Other messages revealed in court documents mocked and belittled women, gay people and Asian people.
“We had learned enough already to conclude he is a bigoted man, a disgrace to public service, and we do not trust him,” wrote Assistant District Attorney David Angel, who authored the letter. He also wrote that even though “evidence of McNamara’s bigotry came after these cases, for the purpose of this project we would assume that he held the same beliefs at the time of the older case.”
All 54 of the cases were misdemeanor and narcotics arrests that date back to when McNamara joined the SJPD in 2017, his first law enforcement job. Of those, 13 had already been dismissed because of insufficient evidence for criminal charges. That left 41 active and resolved cases, and prosecutors said the five they are dismissing were underpinned by police investigations that hinged on McNamara’s word.
For the remaining 36 sets of criminal charges, Angel wrote that they decided not to dismiss them because they did not heavily rely on McNamara’s direct testimony or observations. The rationale is that since he was predominantly a patrol officer, he could be severed from the cases because field investigations he was part of often involved multiple officers’ accounts.
“There’s a difference between someone standing around at a crime scene and someone doing something we’re relying on,” Rosen said. “That’s the balance we’re trying to establish. One thing we wanted to be careful about is dismissing a case where all (McNamara) did was take a statement. That would cause a victim to suffer.”
But O’Neal contends that a harder line needs to be drawn on disqualifying cases and noted that her office has identified 82 cases involving McNamara.
“Any case this racist cop was involved in should be dismissed,” she said. “There’s no such thing as tangential involvement. Any involvement is meaningful. … The way they ask questions of witnesses, the way they write up a report, it all influences the outcome of a case. You have to remove the cancer completely.”
McNamara left the SJPD in November after an unrelated internal criminal investigation — which did not yield charges — unearthed the trove of offensive messages sent between March 2022 and July 2023. The texts included his stating, “I hate black people” and “I hate black people more than I hate being a cop.”
Among more than 300 text messages were about five dozen in which McNamara used the N-word to refer to Black people; the people with whom he was messaging also used the word in replies to him. In a civil deposition, McNamara reportedly testified that his use of the word was playful and that he was inspired by Black actors and comedians to use the slur.
What made the messages even more egregious were several direct references to K’aun Green, who McNamara shot in the early morning hours of March 27, 2022, in what became an infamous case because Green had been a peacemaker in a brawl that erupted inside a taqueria near San Jose State University. Green had been holding a handgun he took from someone else up in the air and backing out of the restaurant, while keeping the weapon away from two people in the fight, when he was shot.
Several texts appeared to chronicle McNamara’s state of mind after the shooting and as Green’s lawsuit proceeded:
“N— wanted to carry a gun in the Wild West … Not on my watch.”
“They should all be bowing to me and bringing me gifts since I saved a fellow n— by making him rich as f—. Otherwise, he woulda lived a life of poverty and crime,” another text read.
He also referred to Green’s attorney using the N-word and in the same message said “I’ll shoot you too too!!!!! AHHHHHH!!!!!”
The veiled threat against Green’s attorneys fueled a gun-violence restraining order the police department filed against McNamara alongside a petition to decertify him as a police officer in California. The identities of the current and former SJPD officers that McNamara corresponded with have not been publicly released either by the city or Green’s attorneys, who received the information under court order.
However, the police department has confirmed that the active officer was put on leave and that the former officer was severed from his out-of-state police job after that unnamed agency was alerted to the texting scandal.
