A Canadian man who spent 18 months in jail after being convicted of charges including child luring and possession of child pornography has been formally declared innocent after his lawyers discovered a mixup in the initial investigation that pointed police at the wrong man.
Brandon Klayme was arrested by police in Halifax, Nova Scotia in February 2020, according to a CBC report (via Polygon), following an investigation by police in the US state of Wisconsin into an exchange of sexual messages, photos, and videos with a 12-year-old on the Kik instant messaging platform.
The suspect in the case had the username “fus__ro_dah,” the famous “Unrelenting Force” dragon shout from The Elder Scrolls 5: Skyrim, but US authorities mistakenly investigated “fus_ro_dah,” with just one underscore instead of two, which led them to Klayme.
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Klayme was found guilty in April 2023 and sentenced to 18 months in prison, followed by another 18 months probation. It wasn’t until earlier this year that lawyers working on his appeal noticed the discrepancy while “trying to figure out why the digital forensic evidence pointed at him given his denial of any involvement.”
“In the latter stages of preparing my appeal arguments, it was discovered that the subpoena contained a subtle mistake that changed the course of my life,” Klayme wrote in an affidavit submitted to the court. “Instead of requesting details for the username ‘fus__ro_dah,’ the subpoena requested details for the username ‘fus_ro_dah.’
“The police officer did not notice that the perpetrator’s Kik username ‘fus__ro_dah’ contains a double underscore. This discrepancy went completely unnoticed at the trial. It was never brought to the attention of the trial judge.”
The obvious question is how Klayme was convicted of the charges in the absence of any actual evidence. The sentencing order (via Gizmodo, and note that it contains some explicit descriptions) is unclear on that point: “No images or chats” related to the case were found on any of Klayme’s devices, but prosecutors nonetheless spent three days presenting evidence, and the court ultimately concluded “on the basis of the totality of direct and circumstantial evidence,” including IP addresses and other online account information, that Klayme was the person involved in the exchanges with the victim.
The order overturning Klayme’s sentence is equally unclear, although it points the finger directly at that username mixup as the root cause of Klayme’s nightmare.
“If the correct username had been used to obtain the subscriber information from Kik, the Crown could not have proven Mr. Klayme was fus__ro_dah with two underscores,” the ruling states. “Further, if the correct username had been used at the start of the investigation, the subsequent steps in the investigation would not have led to Mr. Klayme. He would not have been arrested and charged with the offences.”
The appeals court also made a point of stating that Klayme was not being released on a technicality, legal error, or simple doubt: “Mr. Klayme should not have been convicted of these offences. This is not a situation where an acquittal is entered because the Crown has failed to prove beyond a reasonable doubt the essential elements of an offence or an error during the trial made the verdict unsafe. In these circumstances, Mr. Klayme is factually innocent of the offences. He should never have been charged, let alone convicted.”
The ruling granting Klayme’s appeal also says that if police had pursued the correct user name, it likely would have led to someone in California; that person is presumably still walking around free.
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