The entire case came down to a single underscore. A difference of just one character was enough for the police to target the wrong person and for an innocent man to spend 18 months in prison.
A Canadian man who spent 18 months in prison after being convicted of offenses including child luring and possession of child pornography has been formally declared innocent after his lawyers discovered that an error in the original investigation caused police to target the wrong person. Brandon Klayme was arrested in Halifax, Nova Scotia, in February 2020 after police in Wisconsin launched an investigation into sexually explicit messages and the exchange of photographs and videos involving a 12-year-old child on the Kik instant messaging platform.
The suspect’s username was “fus__ro_dah,” a reference to the famous Unrelenting Force dragon shout from The Elder Scrolls V: Skyrim. However, U.S. authorities mistakenly investigated “fus_ro_dah,” which contained only one underscore instead of two, and that error led them to Klayme. He was found guilty in April 2023 and sentenced to 18 months in prison, followed by another 18 months of probation. Lawyers working on his appeal noticed the discrepancy only earlier this year while attempting to understand why the digital forensic evidence pointed to Klayme despite his consistent denial of any involvement.
“During the final stages of preparing my appeal arguments, I discovered that the subpoena contained a subtle error that changed the course of my life. Instead of requesting information for the username ‘fus__ro_dah,’ the subpoena requested information for ‘fus_ro_dah.’ The police officer failed to notice that the perpetrator’s Kik username, ‘fus__ro_dah,’ contained two underscores. This discrepancy went completely unnoticed during the trial. It was never brought to the trial judge’s attention,” Klayme wrote in an affidavit submitted to the court.
The obvious question is how Klayme could have been convicted in the absence of direct evidence. The original ruling is not entirely clear on that point: investigators found no images or conversations related to the case on any of Klayme’s devices, yet prosecutors presented evidence for three days. The court ultimately concluded that Klayme had participated in the correspondence with the victim based on the totality of direct and circumstantial evidence, including IP addresses and other online account data. The decision overturning Klayme’s conviction is also unclear in certain respects, but it directly identifies the username mix-up as the cause of his ordeal. The appellate court explicitly emphasized that Klayme was not acquitted because of a technicality, a procedural error, or ordinary reasonable doubt.
“Had the correct username been used to obtain subscriber information from Kik, the Crown could not have established that Mr. Klayme possessed the username ‘fus__ro_dah,’ with two underscores. Furthermore, had the correct username been used at the beginning of the investigation, the subsequent investigative steps would not have led to Mr. Klayme. He would not have been arrested or charged with these offenses. Mr. Klayme should not have been convicted. This is not a situation in which an acquittal is entered because the Crown failed to prove the essential elements of an offense beyond a reasonable doubt, or because an error during the trial made the verdict unsafe. In these circumstances, Mr. Klayme is factually innocent of the offenses. He should never have been charged, let alone convicted,” the ruling states.
The decision allowing Klayme’s appeal also states that tracing the correct username would probably have led investigators to a person in California. That individual is presumably still at large.
Source: PCGamer, CBC, CanLII, Courts of Nova Scotia
