Background
Brett Smith, 43, worked as an elementary school substitute teacher and private tutor in Illinois, Indiana, and Arizona. In January 2026, he was arrested and charged with aggravated criminal sexual abuse and related offenses involving a nine-year-old boy he tutored. The child’s mother found Smith’s tutoring profile on the Nextdoor app and hired him. After Smith tutored the child approximately thirteen or fourteen times, the parents discovered news articles about “Brett Smith” (formerly Brett Zagorac) describing multiple prior allegations of crimes against children. When confronted, the child disclosed that during tutoring sessions Smith had rubbed his back under his shirt, touched his buttocks, placed the child’s pen on his groin, and engaged in other inappropriate conduct. The child’s account was corroborated in a forensic interview at a Children’s Advocacy Center, and both the child and his mother identified Smith in photo lineups.
At the detention hearing, the State presented an extensive history of Smith’s prior conduct over more than two decades. Despite pleading guilty to multiple battery and related charges involving children, Smith continued to work in positions with access to minors across multiple states using different names. Most notably, in 2019 he legally changed his name from Brett Zagorac to Brett Smith while in Arizona, and in early 2026—while this case was pending—he was also charged in a separate jurisdiction for similar conduct as a substitute teacher and was under investigation by the Illinois Department of Children and Family Services for additional allegations.
Smith argued that he should be released on conditions including electronic monitoring with GPS, home confinement, prohibition on internet applications, and a no-contact order with the victim. He contended that his prior cases involved only back-rubbing that was ultimately unfounded, and that he had complied with prior conditions of release and sex offender evaluations showed no abnormal sexual interests.
The Court’s Holding
The Appellate Court affirmed the circuit court’s denial of pretrial release, holding that the State met its burden under the Pretrial Fairness Act by proving by clear and convincing evidence that: (1) the proof is evident and presumption great that Smith committed aggravated criminal sexual abuse; (2) he poses a real and present threat to the victim and community; and (3) no conditions of release can adequately mitigate that threat. The court noted that it would apply de novo review because the State presented evidence by proffer rather than live testimony.
Regarding Smith’s argument that the State improperly relied on expunged and sealed records, the court held that the Pretrial Fairness Act permits courts to consider evidence of a defendant’s prior conduct regardless of whether records are sealed or expunged. The Act allows courts to consider relaxed evidentiary rules and evidence of a defendant’s “history and characteristics” including conduct “indicative of abusive or assaultive behavior,” and sealing or expungement does not erase the underlying facts or prevent their presentation at detention hearings. The court found the evidence of Smith’s historical pattern of conduct toward children highly relevant to assessing his dangerousness.
On the critical question of whether conditions could mitigate the threat, the court rejected Smith’s proposed conditions as inadequate. Electronic monitoring would allow Smith movement time during which he could tutor children or allow them into his home where no supervision could reach him. His use of multiple aliases and pseudonyms across different states while continuing to seek positions involving access to children demonstrated his determination to hide his history and pursue access to minors despite multiple arrests and convictions. Most significantly, his pattern of continuing this conduct despite prior criminal sanctions—including while on pretrial release for the Porter County case—showed he would not comply with any condition prohibiting contact with children.
Key Takeaways
- Expunged and sealed criminal records may be presented and considered at pretrial detention hearings under the Pretrial Fairness Act’s relaxed evidentiary standards, even if not accessible through official court order processes
- A defendant’s pattern of conduct over an extended period—including repeated similar offenses, name changes, multi-state movement, and continued pursuit of positions with access to victims—is admissible evidence of dangerousness and intent to continue predatory behavior
- General release conditions such as electronic monitoring, home confinement, and internet restrictions may prove inadequate when a defendant’s history shows determined, persistent predatory conduct that has not been deterred by prior criminal sanctions
- Courts need not accept a defendant’s characterization of prior conduct (e.g., “only back-rubbing”) when the full record demonstrates a progressive pattern of escalating sexual abuse against multiple victims
- The practical inability to monitor a defendant’s home or to supervise interactions with children during movement allowances under electronic monitoring is a valid basis for finding release conditions insufficient
Why It Matters
This decision strengthens prosecutorial tools at the pretrial detention stage by clarifying that sealed and expunged records—though protected from certain uses—need not prevent presentation of the underlying facts and circumstances at detention hearings. For prosecutors, the ruling affirms that comprehensive evidence of historical conduct, even when prior cases were dismissed or resulted only in misdemeanor convictions rather than sexual offense convictions, may establish the pattern evidence necessary to prove a defendant poses a real and present threat warranting detention.
The decision also reflects judicial recognition of how sophisticated predators operate: they change identities, relocate, exploit trusted positions, and adapt methods to evade detection while continuing predatory behavior. The court’s willingness to consider the totality of this pattern—including the use of aliases specifically to hide criminal history from parents seeking trustworthy tutors—acknowledges the calculated nature of such conduct and the inadequacy of conditions that merely restrict overt access while leaving substantial opportunity for abuse within a home setting.