Judicial candidate Jason Marbutt's flyer with stock photos of two African American men.

A Superior Court candidate's use of a stock photo featuring two Black men rather than himself in a campaign mailer circulating in Cobb County's minority neighborhoods is generating criticism that it was intended to mislead voters.

Candidate Jason Marbutt's mailer also could run afoul of state judicial ethics canons if it was meant to deceive, a former chairman of the state's judicial watchdog agency says.

Coakley Pendergrass, founder and chairman of the Georgia Community Coalition, said he was "appalled" when Marbutt's mailer was brought to his attention. Pendergrass said he was contacted by minority community members who assumed Marbutt was one of the two Black men depicted and wanted more information about someone they believed was a Black candidate.

Pendergrass said he was stunned to discover the photo was not of Marbutt, who is white, although the candidate was circulating other mailers that did include his picture.

"It was like the candidate was saying, 'Hey, I'm one of you. I'm in your community. … Support me," Pendergrass said.

Pendergrass called it "two-faced."

"Those individuals like myself who have an ear and an interest in what's happening in our community, we are concerned," he said. "To have a person like that in a position to make a decision for or against black or brown people scares me."

Marbutt, a veteran county prosecutor, is running to replace Judge Stephen Schuster, who retires Dec. 31. He faces an Aug. 11 runoff with Marietta attorney Greg Shenton. Cobb County currently has no Black Superior Court judges, but voters elected the county's first two Black judges on June 9.

Marbutt said the mailers with his photo, his family's photo, and the stock photo were sent to voters throughout the county and not based on location, neighborhood or race. He said the stock photo is intended to reflect the county's diversity and his own support for that diversity.

Judicial candidate Jason Marbutt's flyer.

Marbutt didn't respond to questions about endorsements from Cobb's minority communities. "I won the primary with 60,000 votes," he said. "We are a diverse county. Of course I have African American support."

Marbutt garnered 39% of the vote in the June 9 election, falling short of the 50% plus one vote threshold needed to win the election. Shenton placed second in the three-way race with 32.5% of the vote.

Marbutt said he has also sent mailers featuring a stock photo of an elderly white couple that attracted no criticism. "We have a diverse community in Cobb County, and our campaign has tried to show that diversity through our message and our ads," he said. "Anyone who is offended that we would include African Americans on a mailer should take a long look in the mirror."

But state Rep. David Wilkerson, D-Powder Springs, and Cobb County Commissioner Lisa Cupid said they both received Marbutt's mailer corresponding to their race, as did a number of Cupid's constituents. So did Cobb County defense attorney Ashleigh Merchant.

Wilkerson said that, if Marbutt's mailings were not targeted, then the money he paid to a well-known local political mail consulting firm was wasted. "Every campaign consultant targets," he said. But Wilkerson, who lives in an interracial household, also said that he considers the use of one mailer with a stock minority image and other mailers with Marbutt's photo "racist campaigning."

"I told my neighbors and people I'm close to just to be aware of it," he said. "We should move past that. Whenever it comes up, it needs to be called out."

Merchant, a vocal supporter of Shenton's campaign, called Marbutt's mailers "disingenuous."

"It's an effort to try to tell voters he's something he's not," said Merchant, a member of the Georgia Association of Criminal Defense Attorneys' executive committee. Merchant said she received a different mailer with a photo of Marbutt that was sent to voters in largely white east Cobb.

"I think that the fact he [Marbutt] felt comfortable putting his white family and himself on certain mailers, but then he is nowhere to be found on another mailer … was created to deceive the recipients," she said.

Merchant said she located the stock photos online after she noticed the mailer did not identify the two men or include statements endorsing Marbutt.

Merchant said the phrases used in Marbutt's stock photo mailer were also "in stark contrast" to two other mailers depicting Marbutt and his family. Those mailers describe Marbutt as "the candidate to keep us safe" and "the best choice to uphold the rule of law."

Shenton also said the stock photo is misleading. Marbutt "has been very forceful that he will 'protect victims and families,' be 'tough on crime' and 'keep us safe,'" Shenton said. "Then this mailer is sent, as best I can tell, to predominantly south Cobb Democrats … with no photo of him, with a stock photo you can buy for $33, and with a completely different message than he's been hammering home for months."

Chuck Boring, executive director of the state Judicial Qualifications Commission, which polices the state's judges, wouldn't comment on whether Marbutt's use of stock photos in campaign flyers is at odds with the Code of Judicial Conduct.

The code, which applies to judicial candidates, prohibits the use or publication of false or misleading statements about candidates or their opponents. Candidates also bear responsibility for any statement or advertisement circulated by their campaign committees.

But Cartersville attorney Lester Tate—a former JQC chairman who has defended judges facing ethics inquiries—said he is unaware of any JQC opinions addressing the use of stock photos in campaign literature.

"There is no question in my mind" that misleading statements in judicial campaign literature are covered by the state's ethics canons, he said. "There is no question in my mind the commission would be authorized under its rules to take action if they are able to prove it's misleading."

However, judicial ethics rules can't infringe on a candidate's First Amendment rights, Tate added. "Candidates have to have the right to make statements, some of which are horribly misleading."

But while misleading statements may be shielded by the First Amendment, Tate said, "Judges or judicial candidates should not engage in any type of conduct that gives the appearance of impropriety."

"Something that … attempts to portray someone of being a race, creed or color they are not would certainly be misleading, and I think would violate the canons," he said. "However, the ability of the commission to respond might be impaired by the U.S. Supreme Court rulings regarding the First Amendment."

CORRECTION/CLARIFICATION: This story has been corrected to reflect that Jason Marbutt said his campaign mailers were designed to reflect Cobb County's diversity and his own support for that diversity. The story has also been updated to note that Ashleigh Merchant is a supporter of Greg Shenton's campaign.