McParland had Orchard transferred from the Caldwell, Idaho jail to death row in the Boise penitentiary. The move was initially resisted by Judge Smith, who would be responsible for trying the case. The local judge anticipated a successful habeas corpus lawsuit against the tactic. McParland gave him "thirty precedents for the move." However, the sheriff in Caldwell reportedly opposed the move as well. Gooding arranged a meeting between McParland and Chief Justice Stockslager, and then with Judge Smith. Before Smith arrived, McParland declared the county jail insecure, a potential target for dynamite. He also stated the purpose of the move to death row: "After three days I will attempt to get a confession." Chief Justice Stockslager approved of the move. In a pre-arranged plan, the Governor was called out of the room as soon as Judge Smith arrived, leaving McParland and the two judges alone. With the Chief Justice supporting the move to death row, Judge Smith also agreed.
